The law does not criminalise every offensive, controversial or inflammatory comment. However, words, online posts and videos can become a criminal matter where they meet the legal test for an existing offence.

When assessing whether hate speech has crossed the line into a criminal offence, the police and Crown Prosecution Service will consider what was said, who it was aimed at and how the words were likely to be understood. They will also look at whether the material involved threats or harassment towards a protected characteristic.

This article from the criminal law solicitors at Tyler Hoffman explains when hate speech may lead to charges, where free speech applies and what you should do if you are contacted by the police.

Is hate speech a hate crime?

Hate speech and hate crime are not the same thing.

Hate speech is a broad term used to describe words, posts, messages, images or videos that are alleged to be hostile, abusive or discriminatory. Hate crime is a legal category that applies where a recognised criminal offence is alleged to involve hostility towards a protected characteristic.

In England and Wales, this can include hostility based on race, religion, sexual orientation, disability or transgender identity. It can also include hostility based on what someone is perceived to be, even if that perception is wrong.

This means hate speech is not a criminal offence by itself. The legal issue is whether the words, post or message fall within a separate, existing offence.

When can words or posts become a criminal offence?

Words, posts or messages may become criminal where the communication is threatening or abusive, amounts to harassment or is alleged to stir up hatred. The main legislation used in these cases includes the Public Order Act 1986, the Malicious Communications Act 1988 and the Communications Act 2003.

In practice, where hate speech allegations are alleged to be linked to public order offences, a course of harassment or malicious communications, charges may follow.

This can happen in different ways. A social media post may be reported because it appears to target a particular group. A private message may be reported by the recipient. A video, meme, comment thread or group chat may be passed to the police with screenshots or account details. In some cases, the issue is not only the words themselves, but who they were aimed at, whether they were public or private, and whether they appear to show hostility towards a protected characteristic.

The police may then assess the exact wording, the wider exchange and any available digital evidence. They may consider whether the communication was threatening, grossly offensive, menacing, abusive or part of a pattern of conduct. They may also look at whether the person being investigated can be linked to the account, device or message.

If you are facing such an investigation, it is imperative you retain the advice of a solicitor as soon as possible. A hate speech solicitor will examine the allegation before interview, identify what offence the police appear to be considering and test whether the legal threshold is actually met. These cases often turn on context, intent, audience and interpretation. A phrase taken from a screenshot may look different when the full conversation, timing, relationship between the parties or wider exchange is considered. Your solicitor will make sure all these things are taken into account at the earliest stages, so that where possible, you can avoid further action.

Your solicitor will also advise on how to deal with a police interview. This could include preparing a clear account where appropriate, challenging assumptions about meaning or hostility, identifying missing context and making sure you do not give an incomplete or damaging explanation without understanding the allegation. Where the evidence does not support a charge, early representations may be made to the police or CPS before the case progresses further.

Is online hate speech illegal?

Online hate speech becomes illegal where it meets the test for a criminal offence. The fact that something was posted online, sent in a private message or shared in a group chat does not prevent it from being investigated.

Online material can include social media posts, comments, direct messages, group chat messages, emails, images, videos, memes, reposts, shares and account history. The police may look not only at the post or message that was reported, but also at the wider conversation around it.

Communications offences apply where a message is grossly offensive, indecent, obscene or menacing. In some cases, the issue may be whether the message was aimed at a particular person. In others, the question will be whether the content was likely to stir up hatred or amount to threatening or abusive conduct.

Material that was originally sent privately can still become evidence if it is reported, saved as a screenshot, forwarded or recovered from a device. Deleting content after a complaint will not necessarily prevent an investigation. Screenshots, platform data, message records and device evidence may still exist.

If you believe online content has been reported to the police, you should take legal advice from our team before deleting material, contacting complainants or trying to explain the matter yourself, as these actions could be interpreted as signs of guilt should there be a case against you.

Does free speech protect offensive comments?

Freedom of expression is an important legal right, but it is not an automatic defence to every allegation involving speech.

The law recognises that people may express political, religious, social or personal views that others find offensive or controversial, and criminal law does not punish every unpopular opinion. However, free speech does not protect conduct that meets the legal test for a criminal offence.

A comment may become a criminal issue where it involves threats, harassment, grossly offensive communications, public disorder, or conduct intended or likely to stir up hatred.

Where police become involved, the issue is often whether the alleged conduct crossed a high threshold. The same words may be treated differently depending on whether they were part of a private exchange, a public post, a targeted message, repeated conduct or a statement directed at a protected group.

What happens if hate speech is reported to the police?

If hate speech is reported to the police, the first step is usually an assessment of the content and the circumstances. Where the report relates to online material, officers may preserve screenshots, obtain statements and consider whether the account or device can be linked to a particular person.

If the matter progresses, you may be contacted by the police and asked to attend a voluntary interview under caution. In some cases, you may be arrested, particularly where the police believe there is a risk of further offending, evidence needs to be secured, or immediate questioning is considered necessary.

An interview under caution is a formal stage of the investigation. Anything you say during this interview may be used in evidence. A voluntary interview can be just as important as an interview after arrest, and we advise you in the strongest terms to speak to our criminal defence solicitors before you speak to the police in any way, whether that is an informal interview or an interview after an arrest.

As a result of an investigation or interview, the police will decide whether out of court disposal, investigation or no further action are the best next steps. If there are to be charges, they will refer the case to the CPS for a charging decision.

What are the possible consequences of a hate speech allegation?

The first consequences of a hate speech allegation may arise during the investigation. The police may confiscate and examine phones, computers and access your social media accounts. Posts, messages, screenshots or videos may be reviewed as evidence. Bail conditions may restrict contact with certain people, use of particular accounts or further online activity while the investigation continues.

If the suspect is charged and hostility based on race, religion, sexual orientation, disability or transgender identity is proved, the court will likely increase the fine or sentence. This means the same underlying offence can attract a heavier penalty where the hostility element is established.

There may also be consequences beyond the criminal case. For people in regulated professions, public-facing roles or trusted positions, allegations involving online content can be reported to employers, professional regulators or safeguarding bodies. Even while the criminal process is ongoing, the existence of an investigation can create employment, reputational or regulatory risk.

This is why early advice is crucial. The consequences of a conviction can extend beyond the sentence itself, affecting employment, professional standing, reputation and, in serious cases, liberty.

What should you do if police contact you about hate speech?

If the police contact you about something you said, posted, shared or sent, take legal advice before giving an account. As we have discussed before, even a voluntary interview will be done under caution, and anything you say could be used as evidence against you.

You should not assume that you can resolve the matter by explaining yourself informally. These cases often turn on wording, context, audience, intent and interpretation. A short explanation given without advice may be incomplete or open to being misunderstood.

Any relevant messages, posts and wider context should be preserved. Do not delete material once you know there is an investigation. Avoid contacting the complainant or witnesses, and avoid posting further comments about the allegation.

When you speak to a defence solicitor, give them the full picture. That means the message or post itself, the exchanges before and after it, who was involved, how the conversation developed and anything that explains the context. You should always be transparent, as this means your solicitor can build a robust defence that accounts for the full scope of accusations the prosecution may rely on.