Much has been made of the “chilling effect” of British defamation laws on public debate in recent years. Given that backdrop, the lack of furore over our criminal, as opposed to civil, regulations of speech is rather difficult to understand.
Quite arguably, the chilling effect of these so-called ‘speech offences’ has been even more pervasive, akin to a Siberian winter at times, due to the woefully inadequate safeguards and catch-all wording that characterises almost each and every one of them.
The six 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 a message that is “grossly offensive or of an indecent, obscene or menacing character”.
2) 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”.
3) 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]”.
4) 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.
5) Section 1 of the Protection from Harassment Act 1997 prohibits any “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”.
6) Section 1 of the Crime and Disorder Act 1998 prevents “anti-social behaviour” if this is “likely to cause harassment, alarm or distress”
All protest is “likely to cause harassment, alarm or distress” and will “intend to cause alarm” by its very nature. Indeed some protest groups, such as animal rights and anti-abortion campaigners may even “intend” to cause “distress” when displaying images of animal abuse or aborted foetuses in a public place. However, should such behaviour constitute a criminal offence when the predominant motive was innocent and educational?
Alarmingly, some of these offences do not even require a prima facie finding of “insult” in order to secure a conviction. As such, David Davis’s campaign to remove that threshold from Section 5 will do absolutely nothing to reduce the (comparably greater) chill of these other laws. To properly deal with this issue, a Select Committee should be tasked to review all such laws and its recommendations should be incorporated into one clearly labelled Act.
With a right as important as free Speech, one should never have to look hard for the limitations to that right. Whilst “incitement to violence” should obviously remain the bedrock prohibition of any new framework, nebulous concepts like “abuse” and “insult” should enjoy far greater protection when “primarily geared towards the furtherance of a discussion of public interest”. Words like “dangerous” and “evil” are used in common parlance and yet could easily fall into either category of speech.
The only “safe” prohibitions across the board would be “threatening language/behaviour” (which is already an offence) and “obscene phraseology/delivery” (which is not). A prime example of the latter would be “you are a stupid faggot”. In addition, the “deliberate harassment” of someone over a “public communications network” should constitute a criminal offence.
As regards to our race hate legislation, this should also be amended to better protect the kind of comments made by Baroness Warsi MP with regards to the recent “grooming” trial. An additional defence of “substantial truth” and a reaffirmation of our natural right to hold “an evidence led opinion on a matter of public interest” would help to protect those speakers whose innocent intentions could not be so easily proven.
Finally, if a shop worker in a town centre could not “reasonably be expected to divert their attention away from a protest”, for example, if they were sat facing the street outside for the duration of their shift – then the police should have the power to relocate the speaker if their message distressed that particular worker. However, any alternative venue “…would have to accommodate, in so far as possible, the wishes of the demonstrators”.
What are your thoughts?
* Ben Boult is a politics graduate of Keele University and a freedom of speech campaigner