The micro-blogging site Twitter announced yesterday that it had blocked the account of a neo-Nazi group accused by German authorities of inciting hatred towards foreigners. In a landmark case, unprecedented in pitting concerns over censorship and free speech against national laws on the incitement to racial hatred, the company said it had complied with a request by German police who have been monitoring the activities of the banned far-right group ‘Besseres Hannover’ (‘Better Hannover’) for some time. In a tweet posted on the website, Twitter’s chief lawyer Alex Macgillivray stated:

‘We announced the ability to withhold content back in Jan. We're using it now for the first time re: a group deemed illegal in Germany.’

The Hamburger Abendblatt, a German daily newspaper, described the company as ‘walking on a tightrope’ in its efforts to tread a responsible path between upholding its self-proclaimed identity as on the ‘free-speech wing of the free-speech party’ and acknowledging the hate speech legislation of elected national governments. Moreover, this morning’s subsequent decision to remove French anti-semitic tweets (circulating on its service with the #unbonjuif hashtag) in response to a threat of legal action will fuel the debate over the arbitrariness or otherwise of the company’s censorship policy.

Is Twitter right to exercise its executive authority in such circumstances? While it seems to have gone out of its way to be transparent about precisely why, what and from whom it blocks, such as restricting the censorship of the first case to Germany alone, the decision has some distinctly troubling implications.

It is hard to quarrel, for instance, with the fundamental principles of Article 19 of the Universal Declaration of Human Rights (1948):

‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’

To which the response of a modern politician (or, indeed, a chief executive of a global social media corporation) might well be to appreciate the sentiment whilst wearily asserting that, in practice, the realities of counter-terrorism make such ideals an unobtainable luxury. To be sure, there cannot be a complete free-for-all: no-one wants to see Abu Hamza re-tweeting Khalid Sheikh Mohammed’s top ten bomb-making tips. Subjective judgment must clearly be exercised. But by whom? When David Cameron stated in 2011 that, ‘frankly, we need a lot less of the passive tolerance of recent years and much more active, muscular liberalism’, he presumably didn’t have in mind the particular muscularity of the infamous ‘Twitter joke trial’, whereby a Yorkshireman tweeting light-hearted frustration at his disrupted travel plans (‘You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!!’) could be charged with 'sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to the Communications Act 2003'.

Since both the German and French cases are concerned specifically with the concept of racism (both Nazism and anti-semitism more generally), it is instructive to look at a couple of examples of other cases where people have fallen foul of the law – not liberal opinion, the law – vis a vis opinions posted on the internet. To take two recent cases in the UK: a student jailed for 56 days having posted racist comments in response to the on-pitch collapse of the Bolton Wanderers footballer Fabrice Muamba; and Michael Coleman, a BNP activist sentenced to an 8-month prison sentence and 240 hours of community service for racially aggravated harassment in a blogpost.

There are a couple of things to bear in mind here at the outset. One is that, since the publication of Sir William Macpherson’s report in the aftermath of the murder of black teenager Stephen Lawrence in 1999, the working definition of a ‘racist incident’ in the UK has come to be, as defined by that report, "any incident which is perceived to be racist by the victim or any other person [my italics]". In other words, any objectivity in the matter is by definition excluded; subjectivity reigns.

The second is that, without wanting to get too bogged down in philosophical abstracts, the guiding principle in questions of freedom of expression must be J.S. Mill’s ‘harm principle’ as expressed in his On Liberty, which states ‘that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’. The student Liam Stacey tweeted threatening, racist and, as it turned out, drunken abuse to all and sundry; Coleman summarized UK immigration policy on his blog as one of ‘darkies in, whites out’. Clearly, you wouldn’t want to invite either man to Sunday lunch. But, as Vice magazine so eloquently puts it: ‘should being a racist dick on the internet be illegal?’, and, if so, what should be the criteria either for prosecution or for censorship?

The answer to date has appeared to be, oh well, if there’s a big enough public outcry we’d better initiate legal proceedings and the judiciary can sort it out after that. It is clear that the critical yet inherently intangible distinctions drawn between incitement and offence lead to rampant inconsistencies. It is arguable, for instance, that Stacey violates the harm principle whilst Coleman is merely grossly offensive – both received a jail term (albeit suspended in the latter instance). In the news items that began this article, one is a fascist political organization that idealizes the Third Reich; the other comprises widespread tweeting of anti-semitic jokes – both are banned.

To an extent, such a stalemate is to be expected, and organizations such as Twitter must be expected to exercise their judgment as clearly and transparently as they can in the absence of any correct answers. In this nascent age of social media, such teething problems are the natural result of a balancing act that is devilishly difficult to get right. In terms of long-term attitudes to strike, Padraig Reidy, News Editor at Index on Censorship, speculates that, apropos social media: ‘I think we need to think about it more like the pub than publishing. If you heard someone being annoyingly racist in the pub, you wouldn't run and find the police. You might leave the pub, or you might tell them to shut up. But you wouldn't immediately think to report them to the authorities. I think we should maybe learn to have those kind of expectations of the web, purely in terms of social media. The clue's in the word 'social'.'