To protect freedom of speech, we need to do more than just reform our libel laws

It is high time we rolled back the culture of offence and reaffirmed our commitment to that most fundamental of rights - freedom of speech

Do we have freedom of speech in Britain?
Ben Boult
On 18 June 2012 12:36

Much has been made of the “chilling effect” of British defamation laws on public debate as of late. This is no great surprise, given the recent surge of high profile libel actions brought by wealthy corporate plaintiffs who have little to no regard for the public interest. What is surprising however is the lack of furor over our criminal, as opposed to civil, regulations of speech.

Quite arguably, the ‘chilling effect’ of these speech offences has been even more pervasive due to the woefully inadequate safeguards and catch-all wording that characterises almost each and every one of them. The case law in this area is equally concerning – yet, to date, the complaints have been few and far between, confined for the most part to a liberal intelligentsia. For those of you who are unfamiliar with the law in this area, the seven worst offenders are as follows:

1) Section 127 of the Communications Act 2003 prohibits the use of any “public communications network” if this is used to send materials that are “grossly offensive or of an indecent, obscene or menacing character”. There is no requirement for anyone to actually feel offended by such materials, however.

2) Sections 42 and 42a of the Criminal Justice and Police Act 2001 prevent you from asking anyone “in the vicinity…of his (or her) dwelling…to do something that he (or she) is not under any obligation to do” or to “not do something that he (or she) is entitled or required to do” if this is likely to cause “…alarm or distress”.

3) Section 3 of the Public Order Act 1986 prevents you from using “…abusive or insulting words or behaviour” if these are “likely to stir up racial hatred”.

4) Section 4a of the Public Order Act 1986 prohibits the use of “…abusive or insulting words or behaviour", if these are used “with intent to cause…alarm…”, and provided that the person in question actually felt “alarm[ed]”.

5) Section 5 of the Public Order Act 1986 prohibits the use of “…abusive or insulting words or behaviour” if these are “likely to cause harassment, alarm or distress” to a person "within...hearing or sight" of the conduct.

6) Section 1 of the Protection from Harassment Act 1997 prevents anyone from pursuing “a course of conduct” that amounts to the “harassment” of another. Section 7 (2) defines harassment as “alarming or distressing” an individual and Section 7 (4) clarifies that such “conduct” can include “speech”. According to Section 1A (a), “harassment” can occur on just one occasion, provided that two or more persons feel ”harassed”.

7) Section 1 of the Crime and Disorder Act 1998 prevents “anti-social behaviour” if this is “likely to cause harassment, alarm or distress”.

The mens rea of each offence is extra-ordinarily low. To take Section 5 as an example, a magistrate or judge need only deduce that a public speaker had an "awareness" that his or her words "may have been" insulting in order to secure a conviction. Whilst a defence of ‘reasonable conduct’ does adjoin the majority of these offences, this has shown itself to be largely ineffective. For instance, Section 5 of the Public Order Act 1986 was used to convict 69 year old Harry Hammond for holding aloft a placard in a public place that read “Stop Homosexuality, Stop Lesbianism, Stop Immorality.”

Though a gay man myself, I feel nothing but sympathy for Mr Hammond. These feelings are partly motivated by his treatment at the hands of an angry local mob. Instead of responding to his protest with more speech, several felt no compunction in assaulting this elderly gentleman (and somehow every one of them managed to avoid arrest). Primarily though, I empathise with his situation because I know just how violated I would feel if my temperately worded and deeply held views were silenced in this manner. 

There have been similar prosecutions under the Protection from Harassment Act 1997. For instance, in 2001, campaigners were prosecuted for holding aloft a placard outside a US Military base which read “George W Bush? Oh dear!” 

Contrary to a reassurance I received from James Brokenshire MP, Secretary of State for Crime and Security, this Act does not only criminalise conduct which “repeatedly and knowingly causes alarm”. Section 125 of the Serious Organised Crime and Police Act amended the law to allow conduct which harasses two or more persons on a single occasion to be prosecuted. As such, Mr Brokenshire’s additional reassurance that “…a protester cannot commit an offence of harassment in relation to a passer-by, as the law stands…” is utterly meaningless. Only one more "heckler's veto" would be needed to place me on the wrong side of the law - hardly an appropriate balancing of rights.

Given that a specific offence of ‘stalking’ was recently incorporated into the Act by virtue of the Protection of Freedoms legislation, and given that a prohibition of “stalking” was the intention of the Act’s original (and remaining) clauses, what possible justification can there be for retaining these earlier provisions in light of recent developments?

It should be clear from the above that the public interest filter has also failed to prevent the chilling effect of these laws. Indeed, the Courts have regularly held that such provisions satisfy the necessary balance between an individual right to protest and the rights of the majority (see Percy vs. DPP and DPP vs. Collins). This appraisal stands in stark contrast to the approach taken by the Courts in the United States. The jurisprudence of the First Amendment prohibits “vague” and “overly broad” restrictions on speech, due to the obvious risks that these pose to free and open public debate. If our Courts are unwilling to follow this line of reasoning and issue their own ‘declaration of incompatibility’, it is up to Parliament to mitigate the chill of these laws.

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