Balancing free expression with necessary restrictions
By Claire De Than
In any given week, the boundaries of freedom of expression will hit the news in many different ways, with contradictory underlying messages and outcomes.
A court suspends a town’s ban on the wearing of burkinis at a beach. A speech given at a legal conference dinner makes a joking reference to the Ku Klux Klan and the Black Lives Matter campaign. The duty placed on universities in the UK to have due regard to preventing individuals from being drawn into terrorism leads to discussions about whether religious speakers are ‘extremist’ and so should be banned from university events.
British Bill of Rights
Theresa May responds to a question in Parliament by saying that universities should be places with open debate, rather than safe spaces designed to ensure that free speech does not cause offence to students. The Norwegian Prime Minister’s Facebook page reportedly has an iconic Pulitzer-winning photograph from the Vietnam war removed against his wishes, on the grounds that it features a naked girl. At a time when a British Bill of Rights could attempt to ‘rebalance’ freedom of expression against other rights in the UK, thinking about the big picture is particularly important: how far should freedom of expression extend; what are its necessary limits? Freedom of expression in Jersey could well be stronger than in the UK, now and in the future, since many of the limitations imposed upon that right in the latter jurisdictions do not yet exist in Jersey.
Freedom of expression covers many different activities: literature, films, artistic expression, advertising, publications, journalistic writings, programmes transmitted by the media, internet communications, counselling and advice. It includes a right for the public to receive information which they need in order to make decisions in their lives, whether a grand decision such as ‘should I have surgery and where can I have it?’ or ‘for whom should I vote?’, or a more mundane decision such as ‘have I got time to take the bus to the airport?’ or ‘is this restaurant any good?’ Human rights law, including that of Jersey, protects not only safe freedom of expression but the right to express unpopular opinions, and the right to shocking, offensive, disturbing or even disgusting speech and expression.
As the European Court of Human Rights said in the case of Handyside v UK in 1979, ‘Freedom of expression … constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to [legitimate restrictions] it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society’.
These are qualified rights, which need to be balanced against various factors including national security, the rights of others, and prevention of crime. International courts such as the European Court of Human Rights generally leave it up to national courts and governments to decide precisely where the balance falls between free expression and necessary restrictions, regarding states as being in the best position to decide how tolerant their society should be. However, this approach has led to inconsistency and made it difficult to predict which forms of expression may legitimately be restricted or censored.
In some circumstances, for example Holocaust denial, free speech may legitimately be banned altogether and criminalised. The right to hold and express unpopular opinions has sometimes been interpreted as very broad; for example, the European Court of Human Rights has stated that the limits of acceptable criticism of politicians are wider than those of ordinary individuals, since politicians willingly accept a role in which they must take criticism on the chin. Journalists, including bloggers, may publish material which contains some errors and exaggeration as long as it is fundamentally truthful or an honest opinion. But not all judges agree, even within a single court case, as to where the limits should be drawn.
There is a particularly difficult boundary between the freedom to express an opinion and a right not to be subjected to gratuitous insults or attacks on reputation in publications. For example, in the European Court of Human Rights case of Oberschlick v Austria, the majority of the judges found in favour of the applicant journalist, saying that his calling a politician an ‘idiot’ was an opinion, not an insult, and hence was protected by freedom of expression. However, the minority of the court disagreed, putting the publication in the category of ‘primitive, fourth-rate journalism which, without having the qualities required to present serious arguments, has recourse to provocation and gratuitous insults to attract potential readers’. Insults, and pornography, are currently at the lower end of free speech protection.
It is often said that human rights matter most in times of crisis. To that statement I would add that legislators should take a step back and see the big picture of rights and obligations before passing piecemeal legislation targeting one perceived problem in society.
As the European Court of Human Rights said in Sahin v Turkey, ‘Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position.’
The Proposed British Bill of Rights is a proposal of the Conservative Government, included in their 2015 election manifesto, to replace the Human Rights Act 1998 with a new piece of primary legislation.