Opinion: Criminal laws are freezing out freedom of speech

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

Read more by or more about .
This entry was posted in Op-eds.
Advert

13 Comments

  • Richard Dean 18th Jun '12 - 11:12pm

    I do not see a problem with acting to limit

    > public messages of grossly offensive or of an indecent, obscene or menacing character
    > abusive or insulting words or behaviour likely to stir up racial hatred
    > harassment, alarm or distress
    > displaying images of animal abuse or aborted foetuses in an uncontrolled public place

    I suggest that

    > it is almost always possible to get a protest message heard without resorting to these things
    > judges and juries are likely to usually be able to assess severity and act appropriately

    What happened to Baroness Warsi as regards her comments? It seemed to me that her comments were measured and appropriate, but perhaps reported sometimes irresponsibly (http://www.huffingtonpost.co.uk/2012/05/18/baroness-warsi-pakistani-sex-abuse-white_n_1526854.html)

  • Hello Richard, thank you for your message.

    Nothing happened to Baroness Warsi as a result of her comments. The point I wanted to make vis-a-vis our race hate law was quite simply that its broad wording could scare those outside the community into silence, lest their broadly similar comments should be inferred as stirring up hatred, and supposing the accused was unfortunate enough to lack a visible history of anti-racism campaigning in order to be able to mount an effective defence. I am lucky in that I am blessed with friends of all colours and creeds (and have a history of anti-racism posts on Facebook) – so I am confident I could prove my innocence. But what about Joe Bloggs? That his innocent motives may be nigh-on impossible to prove, should he join the debate and subsequently face the wrath of the CPS, really troubles me as a civil libertarian.

    As to the problem with Section 127 of the Communications Act, any “grossly offensive” message can be prosecuted merely for the ‘act’ of sending it over a communications network. No one actually needs to ‘feel’ offended by the words/material in question. Basically, the law criminalises “hypothetical offense”, which is about as Orwellian as it gets. “Deliberate harassment”, on the other hand, would cover all bases. It would ensure “malicious intent” was a component to the crime, thus protecting those with innocent intentions from prosecution. At the same time, the “intent” component of the offence could be quite easy to infer if the “harassment” was repetetive and had been subject to a prior complaint/warning – thus enabling the law to operate effectively.

    As to your stated objection regarding the display of images of aborted foetuses and animal abuse in a public place, we should never grant the state the power to decide what we should and should not be able to see in such circumstances. Many of us may never think to search for these materials on the internet or in the local library, yet having them thrust upon us may prove a real eye opener and reshape many of our existing views. In any case, given that such materials could never be sent to a personal computer or phone under my proposals, and given that my relocation order would apply to offensive protests in the town centre – I feel I have balanced everyone’s rights more than appropriately. For the record, I would also like my “deliberate harassment” proposal to apply to protests in the immediate vicinity of one’s home, discussions between employees at work and between school children. It is the protestor in a public park or high street I am mainly concerned with protecting.

  • Richard Dean 19th Jun '12 - 12:39am

    Public parks and high streets tend to have a high proprtion of children and other vulnerable people in them – do you really want them to be the focus of permitted obscenity, shock horror images, and abuse?

    Come to think of it, we’re all vulnerable. It’s just that the damaged ones amongst us don’t know it.

  • Just to clarify too, when I asserted that such distressing images “…could never sent to a personal computer or phone…” under my proposals, I meant, never “safely” communicated. I would hope that the ‘chilling effect’ of my harassment law would prevent such communications being sent to people in their “zones of comfort”. It is of course possible however, that the dissemination of such messages could be permitted by a judge, due to their only being sent on a single occasion, thus making “intentional harassment” being harder to prove. However, I would rather we veered on the side of free speech and ended up with a handful of incorrect decisions, than lose too much of our liberty.

  • Well I guess we have a fundemental ideological disagreement here – because I do not think it is the responsibility of government to criminalise such messages in and of themselves. However, if a judge were to decide that a placcard bearing suchan image was “excessively large”, and if the police had made a request for a smaller one that had been ignored by the protestor, I could support such images being classed as “obscene” at common law in these circumstances. It is the idea of an outright ban on such materials in a public place that really troubles me.

  • Where is your evidence of the chilling nature of these pieces of legislation?

    What your analysis is missing is any consideration of Art 10 of the HRA which provides for just the sort of interference with free speech only on a proportionate basis that you are arguing for.

    You also seem to miss that the need for protection from harrassment stems from the fact that “harmless” everyday acts can become harassment (I think one situation that led to the act was the persistent attentions of an unwanted admirer who would send flowers and gifts to a woman several times a day).

  • Hello Hywel, thank you for your message. I would have discussed such issues from the outset if the word count had been on my side! It is certainly true that the Human Rights Act is of relevance here – it’s protective power is considered via the defence of “reasonable conduct” which adjoins to most of these offences. However, it is clearly failing in its duty to protect controversial speech . See here for the relevant case law:

    1) http://www.parliament.uk/briefing-papers/SN05760.pdf
    2) http://www.monbiot.com/2007/08/07/this-is-now-a-protest-for-democracy/
    3)http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060719/collin.pdf

    As regards to your unwanted admirer, he (or she) would probably be caught out by the much more reasonable provisions of the Protection of Freedoms Act 2012. Section 111 prevents actions “associated with stalking”. Have a look for yourself: http://www.legislation.gov.uk/ukpga/2012/9/section/111/enacted

    I hope this helps.

  • Richard Dean 19th Jun '12 - 4:49am

    Does the HRA really have a “duty to protect controversial speech “? Freedom of speech is perhaps an extension of freedom of thought – I know people who cannot make progress in a line of thought without actually speaking their steps out loud. Which can get very boring. The words can come out nasty sometimes if the person passes through an unpleasant emotion on his or her journey from a starting thought to a concluding one, but all that can be private and so not subject to the laws regarding expression in public.

    Monbiot is a controversial blog, obviously protected by freedom of expression. It not, however, an authoritative argument. People really don’t have to camp at Heathrow in order to get their views heard.

    The Appeal in DPP v. Collins 2006 shows the well established process of Statutory Interpretation at work. The case had already progressed through severa stages of court and their Lordships were carefully working out what Parliament had intended by the law in question. It is very clear that they have considered freedom of expression and that they are not being unreasonable in any way.

    There are plenty of acts which one person may regard as harmless and another may regard as harrassment. Stalking is only one example, so it is good that there are also laws that can be used as a defence against the other forms. Again, the Appeals process is available to clarify what Parliament means, and the Lords are generally reasonable people.

  • Of course the Human Rights Act has a duty to protect controversial speech – popular speech doesn’t need any legal protection because everyone wants to hear it anyway.

    As to the Collins case, I’m afraid I got my cases mixed up (it was nearly 2am!). I happen to agree with you on that front – there can be no better example of “obscene delivery” than the language used in that case. I meant to link you to the Chambers case, which involved a jocular threat to blow up an airport (which virtually everyone understood as jocular). See here:

    http://www.guardian.co.uk/law/2012/feb/08/twitter-joke-case-court-appeal

    I fail to see how his conviction could be construed as “responding to a pressing social need” or be judged “necessary in a democratic society” (the test for prohibiting such speech under the HRA). No real terrorist would announce their plans a week in advance. However, such convictions are to be expected when there is no requirement for “malicious intent” to be proven by the prosecution. What are your thoughts on this case?

  • In fact, there’s not even a requirement for “malicious intent” to adjoin “threatening” language in my framework. That’s one problem I have identified as a result of this debate!

  • Richard Dean 19th Jun '12 - 2:28pm

    You might not find a threat to blow up Robin Hood airport as obviously “jocular” if you or yours worked there or if you or yours happened to be passing through at the time. Unfortunately there are people who would actually do that kind of thing for the same stupid reason as the person who made the threat.

    You might be even more worried if you were one of the rather conservative types (little c, perfectly ok to be one) who get frightened by names like “@crazycolours”, or if you happened to notice that he was on his way to a place that used to be where real people really did not long ago blow other real people up.

  • Ben is absolutely right and it’s well past time the Lib Dems took a stand on freedom of speech. There is no right not to be offended or upset by what other people say. I entirely agree with Ben that restriction of free speech in the UK is utterly excessive. The best way to combat speech with which we disapprove is through open debate and refutation- not by using the law to shut it down. Clearly harassment is not acceptable- but everyone has the right to say things that offend others

Post a Comment

Lib Dem Voice welcomes comments from everyone but we ask you to be polite, to be on topic and to be who you say you are. You can read our comments policy in full here. Please respect it and all readers of the site.

If you are a member of the party, you can have the Lib Dem Logo appear next to your comments to show this. You must be registered for our forum and can then login on this public site with the same username and password.

To have your photo next to your comment please signup your email address with Gravatar.

Your email is never published. Required fields are marked *

*
*
Please complete the name of this site, Liberal Democrat ...?

Advert



Recent Comments

  • User AvatarKatharine Pindar 17th Jul - 6:24pm
    I happened to catch the tail-end of an interview on the World at One, Radio 4, today, in which Shadow Chancellor John McDonnell was apparently...
  • User AvatarJohn Peters 17th Jul - 6:24pm
    How dare Farage raise the “EU = Soviet Eastern Bloc” trope. In the Soviet Union when there is only one candidate they get far more...
  • User AvatarJohn Marriott 17th Jul - 6:23pm
    Back in 1962 President Kennedy ended a speech in Texas by saying; “We choose to go to the moon in this decade and to do...
  • User Avatargordon hyde 17th Jul - 5:45pm
    I was there,in ystradgynlais and then sennybridge and i am coming up soon to do my bit again
  • User AvatarWilliam Fowler 17th Jul - 4:28pm
    Plants don't seem to like me very much, out of five fruit trees I've planted only one has borne any fruit. Things like blackberries that...
  • User Avatarnigel hunter 17th Jul - 2:35pm
    Yes, we should look after this Planet but we are also an inquisitive species and a destructive one running out of resources. Discussion. We look...