What limits, if any, should we place on the right to freedom of expression?
Article 10 of the Human Rights Act 1998 sets out Freedom of Expression as a right that is protected under UK Law. This essay will explore the protective measures in place in both statute and case law regarding this right, as well as any limitations already in force, preparatory to analysing the extent to which these are reasonable.
There is no explicit definition provided to what the conditions mentioned in the act may be, however, the briefly outlined extent of this statute is indited in; “Freedom to hold opinions without interference by public authority”, “the exercise of these freedoms” and “subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”[i], which show the protection offered under law as well as the possibility of persecution if these conditions are breached. The HRA 1998 is too subjective to be the sole standardised reasoning behind what is the appropriate use of freedom of expression, and therefore the other supporting statutes, such as the Defamation Act 2013 and Communications Act 2003 were necessary to introduce in an endeavour to minimise the broad possibilities for interpretation and consequently create a fairer legal system.
To recapitulate, the UK has no written constitution to enshrine the rights within freedom of expression, unlike the USA, which holds freedom of expression in very high regard in The Constitution of the United States. Comparably, UK law is piecemeal and therefore supports a more realistic stance on respective law, whereas the USA arguably approaches the more generalisable legal constitution idealistically. The British legal system is designed to reach an individualised outcome for each case based on more recent additions to the Law Commission, as well as looking at how previous cases were resolved (case law), with the main source of legislation being made through the statutory process. Freedom of speech and free press (as addressed in the Freedom of Information Act 2000[ii]) are essential values to British society and are at the core of its democracy.
At the beginning of 2014, the Defamation Act 2013 came into effect with the intention of ensuring a fair balance between the right to freedom of expression and the protection of reputation. Once again, there is no defining explanation for what constitutes a defamatory statement. Section 1[1] of the Act states that a defamatory statement must cause "serious harm" to a claimant's reputation: "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."[iii] This is because it is essential to maintain the freedom that befalls a democratic parliament, where a responsibility comes with the certain amount of control that is required to set these limitations on freedom of expression. It is important to navigate the threshold for offence so that citizens do not feel like their rights are being overly governed and in a more severe sense, fearful of potential consequences, such as in countries with more regulation surrounding their freedom of expression (which is arguably for the most extent, not within the government’s right to control). Governing human rights like that of a person’s expression is a vast responsibility that should not be taken advantage of, in order to allow the freedom and safety that citizens deserve. British citizens are fortunate to have free speech, unlike other countries in the world. The United Kingdom is a ‘free country’; one that protects the civil liberties of its citizens. Thus, it is crucial that the actions accused, in actuality, caused serious harm or reputational damage, whether it is verbal or another form of abuse that is tied to or claimed to be freedom of expression. There is a significant dissimilarity between assault and an insult, so it is necessary to appreciate the difference of the variations that can be found on the spectrum of assault, with a more severe example being Common Assault and less severe example being threatening behaviour (generally the use of threatening words).
A case study that brought to light the potential of quandary with the indefinable standard of defamation, is Jameel v. Dow Jones [2005][iv] – where the Respondent claimed defamation caused by Dow Jones, a Wall Street Publicist, regarding an article Jones had written which had claimed Jameel to be associated with financing known terrorist Osama Bin Laden of the terrorist network Al-Quada. Jones’ defence was that the damage which is applicable to defamation cases, such as stated in Article 10 of the European Convention on Human Rights, was not valid to this particular case as the damage that was caused being minimal due to the limited outreach of the article, however, the Court strongly rejected this reasoning with the opinion that the importance of section 10 of the Human Rights Act relied less heavily on the number of people who had been exposed to the slander because it reasoned that “that English law has been well served by a principle under which liability turns on the objective question of whether the publication is one which tends to injure the claimant’s reputation”.
Conceivably, the damage is also more detrimental depending on the severity of the slander.
Similarly to this was the case of Lachaux v Independent Print Ltd and Evening Standard Ltd [2019] UKSC 27, where the interpretation of Section 1 of the Defamation Act 2013 was questioned. The need for the deconstruction of the legislation raises the question of whether it be more efficient if legislation specified examples of what can be deemed appropriate, especially in the context of security and safety matters (defamation in some cases can lead to serious concern for the victim’s personal safety). Furthermore, these examples outline the need for an overview of what levels of objectivity and subjectivity are necessary for relevant legislation.
The spectrum of assault previously mentioned is covered by the Public Order Act 1986 [Section 4] and consists of language usage and behaviour that is deemed threatening, abusive or insulting.[v] These acts must cause or be likely to cause harassment, alarm or distress. Once again, the POA 1986 does not specify the exact interpretation of these principles that are to be considered, neither does Communications Act 2003 [Section 127], which prohibits online messages that are grossly offensive, indecent, obscene or menacing[vi] – these words without context are going to be subject to debate.
There is the obvious issue that people attempt to claim to be exercising their free speech when they are in fact was to all intents and purposes what is defined as either slander or libel, or slurs and verbal abuse that falls under Hate Speech. The fines for hate speech include fines, imprisonment or both. Racist comments are currently established as an offence by the provisions of ss. 17–29 of the Public Order Act 1986, under “incitement to racial hatred”[vii], and punishable by up to seven years' imprisonment. “Incitement to racial hatred” was first established as a criminal offence in the Race Relations Act 1976. UK Law recognises hate crime on the basis of; Race, Religion, Disability, Sexual orientation and Transgender identity.[viii] Moreover, Hate Crimes can consist of verbal abuse or threatening behaviour (as well as violent crime).
Notably, a significant concern of freedom of expression is when Hate Speech crosses over to supposed Free Speech; due to the laws coming perceptively down to the interpretation of the public, and so this will particularly affect workplaces and places of education, where these boundaries are integral. Citizens that are vulnerable to hateful remarks might agree that, if anything, too much freedom is given regarding the laws surrounding Hate Speech.
The Law Commission review discussed Hate Crime in 2018 and re-drawing the boundaries with issues, such as Misogyny, especially as this was around the time the #MeToo movement had become most prominent, although this discussion was never completed, and no changes were made to UK legislation. These reforms were intended by the Commission to protect disabled and LGBT+ victims, criminalise extremist misogynist “incel” hate material, and safeguard free speech. The last mention of these reforms by the Law Commission was on 7th December 2021.[ix] It remains to be seen whether such reviews will further limit freedom of expression in search of preventing offences or whether instead, differently angled approaches will be taken.
In conclusion, the Freedom of Expression is enshrined in UK law by the Human Rights Act 1998 and numerous other statutes provide examples of all the ways in which this expression may be limited, focusing on the harm that may be caused to others. While these limitations are necessary to prevent inciting violence or other extremes, there is the danger that the bulk of the ambiguous, subjective definitions in UK Law open the door to weaker judgements or alternatively excessively harsh limitations. This perspective is vastly different, however, for citizens who have been negatively impacted by the flexibility of these laws.
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