Globally far-right groups are claiming their freedom of expression is being curtailed by the state and various social media companies when they perceive posts are violating their hate speech code. Since Tommy Robinson, the former leader of the English Defence League in the UK and now right wing activist was imprisoned in May 2018, the arrest and subsequent imprisonment has been cited in many video blogs from right-wing commentators globally to show how western states, in particular the UK, are adopting a ‘police state’ approach when it comes to dealing with the far-right. Along with various court cases, this blog looks at freedom of expression legislation in Australia, Canada, the UK and the US and assesses when far-right narratives cross the line from being simply offensive to race hate crime. This is an extract from a peer reviewed academic journal article I have written that is being published soon.
Freedom of Expression
In a liberal democracy freedom of expression is cherished right allowing for a myriad of views to be expressed without fear or sanction from the state and that includes views of the far-right. There has been a movement where people who are offended by comments not in line with their own and, due to their company policies, internet social media providers have become increasingly influential on what can and what cannot be said or, more importantly, what values and beliefs a person can hold in society. This development is dangerously impinging on the right to freedom of expression. In most European countries this right is governed by article 10 in the Council of Europe’s European Convention on Human Rights (ECHR) and article 11 of the European Union’s Charter of Fundamental Rights and Freedoms (CFRF). Both of these rights contain similar wording in that the right includes holding opinions and the right to receive and impart information and ideas without interference from state authorities. Article 11 CFRF adds that freedom and pluralism of the media shall be respected. In the US this right is enshrined in the first amendment of the 1791 Bill of Rights stating that Congress shall not make laws abridging the freedom of speech or the freedom of the press. In Canada section 2 Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression.
Australia does not have a statutory or constitutional charter or Bill of rights as rights and freedoms are protected under common law. As such the courts have the power to provide significant protection of human rights principles. In carrying out this function in Coco v The Queen the Australian High Court restated the principle that Parliament is presumed not to have intended to limit fundamental rights saying:
‘The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.’
In Electrolux Home Products v Australian Workers’ Union Chief Justice Gleeson said:
‘The presumption is not merely a common sense guide to what a parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.’
This presumption includes the principle that fundamental rights are recognised by the common law. Compared to rights protected in statutory form, common law rights are negative rights and can be eroded via statute. This could explain why Australia incorporated the United Nations’ International Covenant on Civil and Political Rights 1966 (ICCPR) in the Australian Human Rights Commission Act 1986. Article 19 ICCPR states everyone has the right to freedom of expression, adding the right includes freedom to speak, receive and impart information of all kinds. It appears that the Australian right to freedom of expression, as does the US Bill of Rights, has no constraints on what and what cannot be said.
In many jurisdciaitons freedom of expression is not an absolute right to say whatever you want. For example, article 10 ECHR is a qualified right where the state can interfere with that right provided it is prescribed in law and necessary in a democratic society when it is:
1. in the interests of national security, territorial integrity or public safety;
2. for the prevention of disorder or crime;
3. for the protection of health or morals;
4. for the protection of the reputation or rights of others;
5. for preventing the disclosure of information received in confidence; or,
6. for maintaining the authority and impartiality of the judiciary.
In the CFRF article 52 allows limitations to this right, but only where it is provided for in law and the limitation is both proportionate and necessary to meet the objects of general interest of the EU or the need to protect the rights and freedoms of others. To put some context into what is acceptable in relation to freedom of expression in law, in the UK case Redmond-Bate v Director of Public Prosecutions Sedley LJ said:
‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’
When interpreting article 10 ECHR the European Court of Human Rights (ECtHR) has adopted a similar view. In Handyside v UK the ECtHR held that freedom of expression is an essential foundation of a democratic society and the right is not only applicable to information or ideas that are favourably received or regarded as indifference or as a matter of indifference, but also to those that offend, shock or disturb the state or any section of the population. The ECtHR has tempered freedom of expression in Erbaken v Turkey saying that tolerance and respect for the equal dignity of all human beings constitute the foundation of a democratic, pluralistic society. The court added:
‘That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …’
In essence, while some will be offended by extremists’ comments, provided those comments do not glorify or provoke violence, or, promote hatred, they have to be accepted as being part of the rich tapestry of views and beliefs that creates a liberal democracy. The issue is assessing when those views, expressions and opinions cross the line of what is acceptable to when it becomes criminal behaviour and falls outside the parameters of what is acceptable under this right.
Differentiating When Far-Right Views Move From Being Simply Offensive, Irritating, Contentious, Eccentric, Heretical, Unwelcome and Provocative to Criminal?
As social media accounts displaying hate content are suspended or deleted, prima facie there does appear to be credence to the far-right’s claim that freedom of expression is under attack and being curtailed in liberal democracies. This can be seen in the responses and outcry to various comments posted on far-right social media sites or by individuals who are associated or inspired by the far-right narrative where accounts are suspended or individuals are requested, even directed to delete posts deemed to be offensive. When applying the far-right narrative to Sedley LJ’s judgement in Redmond Bate, for many it will be irritating, contentious, eccentric, heretical, unwelcome and provocative. Apart from some neo-Nazi national socialist groups that glorify or advocate violence and expressions that amount to race hate crime, the far-right narrative, as odious as it is, should be allowed in a liberal democracy as should any other extremist narrative that does not advocate violence or hate crime. By doing so the majority will see through the narrative and reject, even ridicule it.
An example of this was in October 2009 in the UK when the British National Party’s (BNP) former leader Nick Griffin, appeared on the BBC’s Question Time programme. There was outrage that the BBC was allowing Griffin and the BNP a platform to air their views on a high profile programme with a wide audience. Having two elected Members of the European Parliament and large number of elected local councillors at the time, the BNP was seen as a political party that should have a platform to discuss their views. Prior to the programme Griffin boasted his appearance would propel the BNP ‘into the big time’. During the programme Griffin got tied up in knots as he tried to answer questions on various topics, resulting in him being ridiculed and even laughed as people saw through his far right rhetoric, which with each answer Griffin became increasingly incomprehensible. It could be argued this was the start of the demise of the BNP. There are times to let people have their say and in doing so it allows people to see right through their argument, which is what happened on this occasion.
There are positives in how social media companies are adopting a hard line in what materials posted by groups and individuals they consider to be hateful against others. Twitter actively targets any group or persons who contravene their policy on hateful conduct and a number of US far-right groups have had their accounts suspended. For example, after posting a number of tweets in relation their far-right views, the Traditional Workers’ Party and the American Nazi Party final tweet said, ‘inevitable that we will be banned at the weekend.’ In relation to Britain First, Facebook finally deleted its account in March 2018 because Britain First continually violated Facebook’s Community Standards. Facebook were initially reluctant to delete Britain First’s page as they were cautious about removing political speech with Britain First being a political party. YouTube have also blocked video’s posted by far-right groups and in 2018 YouTube banned the US neo-Nazi group Atomwaffen Division’s YouTube channel for violating YouTube’s hate speech policies, a move that may have been triggered by the fact Atomwaffen have been linked to five murders and an alleged bomb plot in the US.
When dealing with groups and individuals who post comments in line with national socialist ideology and any other forms of extremist ideology such as Islamist views, social media companies should be applauded for taking this action. The problem comes when what is deemed as contravening the companies’ hateful conduct policy because they deem it offensive, contentious or provocative, but is legal under the freedom of expression. An example of how freedom of expression in the UK is potentially being fettered is how social media companies, mainstream media and UK state agencies have dealt with Tommy Robinson. In April 2016 Twitter permanently suspended Robinson’s account after he tweeted ‘Islam promotes killing people’. In the tweet Robinson was referring to a hundred verses in the Qur’an that incites Muslims to violence against non-Muslims. Due to the content of these tweets, Twitter said they violated its policies on hateful conduct. This raises the question if Robinson’s suspension is an example of social media companies, outside a court of law, restrict freedom of expression and decide what can and cannot be expressed. This is a serious step as these companies are in effect taking the law into their own hands. The suspension of Robinson’s account can be differentiated with Twitter’s suspension of Britain First’s Twitter account and that of its leaders.
In relation to Britain First, Paul Golding and Jeyda Fransen, the content of their tweets were written with intent to spread, incite, promote or justify hatred against Muslims based on an intolerance of their religion, which would fall under the parameters of race hate crime. No one would question the decision of social media companies to delete or suspend groups who express views glorifying or influencing individuals to carry out acts of violence. This seems to be the situation with Atomwaffen as the influence far-right social media accounts can have on vulnerable individuals cannot be overestimated. In relation to Britain First, it was a phrase Thomas Mair shouted as he shot the MP Jo Cox. Also, the behaviour and criminal actions of Britain First’s leaders could have been a factor in Twitter and Facebook suspending the accounts of the group and its leaders. Darren Osbourne was convicted of terrorist related murder and attempt murder after driving a van in Muslim worshippers outside Finsbury Park in June 2017. During his trial in February 2018 evidence was given revealing in the weeks before the attack that among others far-right sites, Osborne was following Britain First and Tommy Robinson on social media claiming it influenced him to carry out the attack. When being interviewed by the mainstream media, in his writings and on his social media sites, Tommy Robinson has always been careful never to accuse all Muslims or Islam per se as responsible for terrorist acts or criminal activity. As Sedley LJ said in Redmond Bate, ‘Freedom only to speak inoffensively is not worth having’.
Especially in relation to Tommy Robinson the debate on whether the UK authorities are restricting the right to freedom of expression is ongoing. In May 2018 Robinson was recording live on his Facebook account outside Leeds Crown Court coverage of a trial involving Muslim defendant’s accused of grooming, raping and sexually abusing young girls. He was arrested for causing a Breach of the Peace and later imprisoned for contempt of court where it was claimed he made comments that risked the trial to collapse. At the time of his sentencing Robinson was serving a suspended sentence for contempt of court during an earlier rape trial at Canterbury Crown Court. Perceived as the UK restricting freedom of expression, Robinson’s imprisonment resulted in protests in June 2018 in Whitehall, London, a change.org petition for his release that received nearly 500,000 signatures and given support from Donald Trump junior who said, ‘Don’t let America follow in these footsteps’, as well as Geert Wilders posting a video on his Twitter account calling Robinson’s imprisonment ‘an absolute disgrace’. Robinson’s imprisonment has also internationally galvanised other right wing activists such as Lauren Southern in Canada and Black Pigeon in the US. Both have YouTube channels that attract many views. On the topic of Robinson’s imprisonment Black Pigeon’s video blog attracted 174,600 views and Lauren Southern’s attracted over 800,000 views with comments mostly supporting Robinson. In Tommy Robinson’s case he has not glorified or encouraged violence and as obnoxious as they are, he has literally posted his observations on how he sees various situations.
Two examples of how comments come outside the parameters for freedom expression can be seen in two ECtHR cases. In Norwood v UK Norwood was a Regional Organiser for the BNP and between November 2001 and January 2002 he displayed a large poster in the window of his flat with a photograph of New York’s World Trade Centre in flames with the words ‘Islam out of Britain – Protect British People’. Following a complaint the police removed the poster. Failing in the UK courts that his freedom of expression had been curtailed, Norwood appealed to the ECtHR. The Court found no violation of article 10 ECHR saying the poster was a vehement attack on a religious group, intimating the group as a whole were involved in an act of terrorism. In Berkacam v Belgium Berkacam was the leader and spokesperson of the organisation ‘Sharia4Belgium’ where he made remarks on YouTube videos that incited others to hatred, violence and discrimination towards non-Muslims. The ECtHR held the comments were incompatible with the ECHR’s values of tolerance, social peace and non-discrimination. In both of these cases the comments were aimed at a whole group, not individuals within a group, holding the whole group as responsible for various acts. This is why Britain First’s social media content would be outside the bounds of freedom of expression and rightly contravene the social media companies’ policies on hateful content as they portray Islam and all Muslims as an evil in society. In relation to Tommy Robinson this is not the case. He never says all Muslims or Islam as a whole is to blame for problems in the UK only particular Muslims who commit either terrorist or criminal offences. His main argument is little mainstream media coverage is given to certain trials involving Muslim suspects, especially in sexual offence trials. Admittedly he has strident views on Islam that could be seen as heretical, but they would fall within the legal parameters of freedom of expression. Using the imprisoning and harassing of Robinson only fuels the flames of complaint by the far-right their freedom of expression is being curtailed by the state. To take back control of the far-right’s position on this argument it might be preferable, when not glorifying or encouraging violence, or inciting race hate, to allow far-right activists like Robinson to continue to use their social media sites. Returning to the example of Nick Griffin on the BBC’s Question Time programme, one should not be fearful of providing them with a platform to air their views as most people will see through the arguments they make. However, if they cross the line into hate crime that is a different matter.
Issues related to this can be found in my book published in March 2018 ‘Terrorism: Law and Policy’ by Routledge