The latest Eurobarometer report on ‘the digital decade’ should raise our levels of concern about the safeguards of free speech, the freedom that is indispensable for almost all our other freedoms.

Much of the report is concerned with other things – the full range of digital services and rights, from online commerce to public services, data protection and protection of minors. But part of it asked EU citizens about the safety of content: untrustworthy online sellers, terrorist content, fake news and hate speech. It also asked respondents whether they considered censorship important – although censorship was called ‘non-transparent moderation of content’ and ‘unjustified removal of content’.

On many issues, Maltese responses were close to the European average. Like other Europeans, Maltese registered low concern with content moderation and removal (indeed, slightly less than average). They were bothered less by terrorist content, too, but scored above-average both for untrustworthy online sellers and misuse of personal data.

There was a notable gap on hate speech, however: a 17 point difference. While 39 per cent of Maltese rated hate speech as important, the European average was 22 per cent.

This gap should not be a surprise. Earlier reports show Maltese concern with hate speech goes back to 2018, just months after the assassination of Daphne Caruana Galizia.

There was no reason for the concern to subside. Journalists have continued to be intimidated, as the Caruana Galizia inquiry documented. Online troll armies, linked to the Labour Party, have been documented. Civil society activists have been physically attacked in a context of continual online denigration. Migrants killed or treated inhumanely in an environment of xenophobic discourse, online and offline.

All these are justifiable reasons for concern. Speech can put its targets in harm’s way. But there’s another factor driving up the concern with hate speech: confusion about what it is.

It is routinely discussed in a way that blurs the distinction between speech that’s against the law with speech that is legally protected (according to the European Court of Human Rights) even though it is deplorable, disturbing or gives offence.

In our public discourse, including by journalists and politicians, ‘hate speech’ has included expressions of contempt and derision towards people with disability, retired politicians and even an unknown sadistic cat killer. But such speech is only against the law if it incites hatred that puts people in harm’s way.

It’s not enough to say the target of the derision or insult was offended or hurt. If that’s the threshold, then our free expression depends on other people’s feelings, which can be arbitrary and over-sensitive. We can’t have the target of our criticism decide if we have a right to make it.

Nor can we have centralised authorities or judges decide what counts as legitimate personal offence. The moment the standard stops being imminent danger to the person, the standard of harm becomes, at best, a speculative calculus.

It is telling that, in calculating the harm caused by some speech, we rarely calculate the harm caused by censoring it- Ranier Fsadni

We have had the police, magistrates and judges decide speech was harmful without a shred of evidence provided to demonstrate that it led to real threats. Indeed, the evidence was sometimes pointing in the other direction because the speech itself had been met with widespread social opprobrium and censure.

On present trends, we are painting ourselves into a corner where we consider that legal action is the only possible reaction to offensive, rude, disturbing or deplorable speech. Whatever happened to intermediate, non-legal, social actions, like criticism, rebuttal or round condemnation? Why does censorship have to replace censure?

It is telling that, in calculating the harm caused by some speech, we rarely calculate the harm caused by censoring it. We have a system of justice based on protecting the innocent, even if some crooks get off scot-free. Likewise, we have a system of free speech based on protecting our essential creative humanity, even if it means that some odious people are also heard.

We cannot think clearly without expressing ourselves in speech or writing. Neurological research shows that the distinctive human parts of our brain are most engaged when we are expressing ourselves. Our free thought and autonomy depend on our ability to speak our mind. A society open to free expression is the ecology we need to be fully human.

Alas, we’re losing touch with this fundamental aspect of ourselves. We have replaced it with a functionalist understanding of free speech: it’s only good if it accords with the sensibility and good manners of society. In practice, it means we are conceding to the authorities the right to decide what can be said or heard. And we’re accepting that, if we don’t toe the line of political correctness, we can be ‘de-platformed’ if not prosecuted.

Malta is hardly the only European (or Western) state redefining the classical meaning of free speech. The blasé attitude towards censorship revealed by the Eurobarometer report extends to all the EU.

In many European countries, laws have been changed to make even discomforting speech subject to censorship or prosecution. It’s being done to protect our democracy and freedoms against internal and external threats.

The actual effect, however, is to undercut the freedom that is our fundamental protection against authoritarianism. If we don’t resist the trend, and roll it back, we will actually be paving the way for radical authoritarians not just to win power but to hold on to it.