Freedom of Expression Allows a Person to Speak Offensively: If You Are Easily Offended Don’t Read This!

Center_Parcs logoDaily Mail logo

 

 

 

In the UK the holiday company Center Parcs have stopped advertising in the UK newspaper, The Daily Mail. The decision was made following a comment article by one of the newspaper’s columnists, Richard Littlejohn who was critical of a married gay couple (one partner of whom is the UK’s diving athlete Tom Daly) announcing they were expecting a child. In the article Littlejohn claims that children benefit most from being raised by a man and a woman. In making this decision, Center Parcs were responding to a complaint from a person who tweeted in effect that by advertising in the Daily Mail Center Parcs was supporting homophobia. Closely following this decision, London’s Southbank Centre announced it would no longer be advertising in the Daily Mail as the newspaper’s values were not compatible with those of the Southbank Centre.

ECHR logous bill of rights
There has been a movement where people who are offended by comment’s not in line with their own and express this on the likes of social media is gathering increasing influence on what and what cannot be said, printed or, more importantly, what values and beliefs a person can hold in society. In a liberal democracy such moves are dangerously impinging on a very important right, the right to freedom of expression. In most European countries this is governed by article 10 European Convention on Human Rights (ECHR) and article 11 European Union’s Charter of Fundamental Rights and Freedoms. In the US this right is enshrined in the first amendment of the 1791 Bill of Rights and in Canada under section 2 Canadian Charter of Rights and Freedoms. In 1980 Australia incorporated the United Nations’ international Covenant on Civil and Political Rights 1966 (ICCPR) which was scheduled 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.
This is not a carte blanche right to say whatever you want. For example article 10 ECHR is a qualified right where the state can interfere with that right when it is prescribed in and 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.

To put some context into what is acceptable in relation to freedom of expression Lord Justice Sedley said in the UK case Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733:

‘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.’ ([My emphasis]

In essence, provided what a person says does not provoke violence, if it offends you it does not violate the right to freedom of expression. Like many others I am offended by comments such as those espoused by Islamist groups like Islamic State or Al Qaeda or those espoused by extreme far right groups, views expressed by certain politicians and pressure groups. Provided that comments I see as offensive do not glorify or provoke violence I accept them as being part of the rich tapestry that creates a liberal democracy and as such I would always advocate it is important for them to have their right to expression and views. Today I notice that from politicians to senior managers of public and private companies they are guarded in what they say for fear of offending the easily offended. Another problem for me is how the views of the easily offended is represented in various social media sites. I have noticed for example in fear of offending Twitter followers or Facebook friends there is a degree of acquiescing to others’ views.

Nick griffinon question time

In 2009 the far right political party, the British National Party’s leader Nick Griffin appeared on the BBC’s Question Time programme, There was an outrage that the BBC was allowing this due to the (and I quote Sedley LJ) the heretical, the unwelcome and the provocative views held by Griffin and his party. In my view I was pleased the BBC allowed this as I knew that on this type of programme he would make a fool of himself and people would see Griffin for the bigoted racist he is. Griffin did get tied up in knots resulting in his views becoming incomprehensible and basically a laughing stock. 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.

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What did Littlejohn say in his Daily Mail column that has caused Center Parcs and the Southbank Centre to withdraw their adverts in the newspaper, along with the pressure group Stop Funding Hate to regularly tweet the names of companies that advertise in the Daily Mail? In the article Littlejohn said he supported civil partnerships, and would prefer a child to be fostered by loving gay couples rather than be condemned to rot in state-run institutions. He added, ‘That said, and despite the fact that countless single parents do a fantastic job, I still cling to the belief that children benefit most from being brought up by a man and a woman’. While I disagree with the latter part of this comment, one can see he is trying to balance his view and in no way is he provoking violence.

Personally I do not agree with the journalistic content of the Daily Mail. For many years it has always run contentious articles and its slant on its news reports has been equally contentious. This is a polite way of saying I get offended by what is regularly reported in the Daily Mail and I disagree with a lot of its commentary. By preventing companies from advertising in the Daily Mail is this in effect saying that Daily Mail readers are prohibited from taking various services or purchasing certain goods, such as in this case is Center Parcs saying that Daily Mail readers are not welcome at its venues? Even the newspaper I regularly read, I do so with a questioning mind as to its sources and reliability in reporting due to the bias held by the editor and the newspaper’s proprietors. In a liberal democracy it is important to have a free press and in doing so that means accepting that the Daily Mail has a right to exist and publish its views just like other newspapers, but you don’t have to buy it or visit their website. I suggest that when appropriate stop being so easily offended and laugh at some of the outlandish and ludicrous reporting in the likes of the Daily Mail.

Should Persons Possessing Items Like the Anarchist’s Cookbook be Prosecuted in a Criminal Court?

Joshua walker

On his return to the UK after fighting with Kurdish forces against Islamic State, Joshua Walker was detained at Gatwick Airport and after being found to be in possession of the Anarchist’s Cookbook Walker was prosecuted for section 58 Terrorism Act 2000, even though a person can purchase the item form Amazon. On Thursday 26th October 2017 the jury at Birmingham Crown Court took three hours to deliberate on their verdict, where they found Walker to be not guilty of the offence. Section 58 has raised a degree of controversy.

anarchists cookbook

 
Section 58 Terrorism Act 2000 provides investigators with a wide power. It is wide because a person merely has to collect or make a record of information that is likely to be useful to a person involved in terrorist activity. What has to be ascertained is the type of article section 58 is referring to. The question is if it includes what would be considered innocuous items such as a train timetable or a map of a city centre with certain locations highlighted or items downloaded from the internet for personal interest. It is worth noting that under section 58 investigators do not require reasonable suspicion the article is for a purpose connected to terrorist activity. In effect, under section 58 the burden of proof is not placed on the prosecution but on potential defendants who have to prove they had a reasonable excuse for their possession of the article.
As a result there have been a number of legal challenges as to what amounts to an article for the purposes of section 58. In R v K (2008) the Court of Appeal held that section 58 was never intended to criminalise the possession of theological or propagandist material adding that:
‘A document or record will only fall within section 58 if it is of the kind that is likely to provide practical assistance to a person committing or preparing an act of terrorism. A document that simply encourages the commission of acts of terrorism does not fall within section 58’.
In R v G, R v J (2009) the House of Lords examined section 58 and, building on the K judgement, the House held that for a conviction under section 58 it is a requirement that the defendant not only possessed the document that may be of use to a terrorist, but they must also be aware of the nature of the information contained therein. The House stressed that this did not mean the prosecution had to show that the defendant knew all the details contained in the document, only that the defendant knew of the nature of the material it contained. The Court held for a person to be convicted under section 58 the prosecution must prove the defendant:
1. Had control of the record which contained information that was likely to provide practical assistance to a terrorist;
2. Knew that he had the record; and
3. Knew the kind of information which it contained.

J challenged this decision and the case went to the European Court of Human Rights (ECtHR) where the case was Jobe v UK (2011) J claimed that section 58 violated article 7 European Convention on Human Rights (ECHR) where there can be no punishment without law. The premise of J’s claim was that section 58 was so vague it was not law and if the court agreed with this argument, his article 10 ECHR rights (freedom of expression) was also violated because section 58 would not be deemed to be an act prescribed by law. The ECtHR held there was no violation of article 7 and stated the House of Lords decision was fully and clearly reasoned. Key to the ECtHR reaching this decision was the guidance the House of Lords gave in their decision regarding the three points cited above that have to be proved for a conviction under section 58 to stand. Likewise the ECtHR found there to be no violation of article 10 saying it was justified under the legitimate aims of the interests of national security and that it did not criminalise in a blanket manner the collection or possession of material likely to be useful to a terrorist.

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I cover this and other statutory preventative measures in the UK, US, Australia and Canada in my forthcoming book ‘Terrorism: Law and Policy’ that will be published by Routledge in March 2018. For a more in-depth analysis of Walker’s case you can listen to my interview with BBC Radio Scotland from Friday 27th October 2017 that is 55 minutes 28 seconds in.