The right to freedom of expression is crucial in a democracy. Article 10 of the Human Rights Act safeguards the right to free expression, which includes the freedom to hold opinions and to receive and impart information and ideas without State interference.
The right to free expression is, however, not absolute – it can be limited to protect the rights of others. Any limitations on the right must be necessary and proportionate, and criminalising even the most unpalatable, illiberal and offensive speech should be approached with grave caution in a democracy.
Criminalising the incitement of violence or threats can be seen to be a justifiable limit on freedom of expression. What is controversial is the criminalisation of language (or behaviour) which may be unpleasant, may cause offence but which is not inciting violence, criminality etc.
The following criminal offences raise particular concerns for freedom of expression:
- Sections 4A and 5 of the Public Order Act 1986 (POA) make it an offence for a person to use threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress. This can have serious implications on peaceful protestors and others exercising their freedom of expression, as someone who uses insulting language that might distress another were they to hear it could be guilty of an offence;
- Section 127 of the Communications Act 2003 makes it an offence to send a message by means of a public electronic communications network which is grossly offensive, or of an indecent, obscene or menacing character. This offence is incredibly broad and has been used to address jovial, albeit misjudged communications – it carries huge implications for freedom of expression especially now that social media is so widely used. Section 127 has been used to prosecute a young man who tweeted his frustration about being unable to see his girlfriend due to airport closure. His tweets, which were made without intent to carry out their content or incite others to do so, resulted in his conviction for being a menace under the Act – thankfully that conviction has now been overturned;
- In 2006 the Racial and Religious Hatred Act amended the POA to make it an offence punishable by up to seven years imprisonment, to use threatening words or behaviour intended to stir up religious hatred;
- In 2008 the Criminal Justice and Immigration Act amended the POA to add an offence of using threatening words or behaviour intended to stir up hatred on the grounds of sexual orientation;
- The Terrorism Act 2006 criminalises ‘encouragement of terrorism’ which includes making statements that glorify terrorist acts, punishable by up to seven years imprisonment. It is an offence even if the person or group making the statement doesn’t intend to encourage terrorism. As the definition of terrorism is so wide this could criminalise people speaking out against repressive regimes anywhere in the world;
- The Offensive Behaviour at Football and Threatening Communications (Scotland) Act provides for two new offences aimed at tackling sectarian division and associated violence in Scotland. Liberty has expressed concern that the broadly framed offences in this Act will unnecessarily sweep up individuals exercising their right to free speech who have no intention to commit or incite a criminal offence and in the event do not do so;
We believe there needs to be a wholesale review of speech offences, particularly under the POA. These offences can be counterproductive (giving extreme groups publicity in the event of any trial), can have a chilling effect on legitimate debate and peaceful protest and have been extended in an ad hoc and piecemeal way. There have been very few prosecutions under these offences, and there is therefore an urgent need to review their efficacy and impact.