Freedom of speech forms a fundamental part of our democracy. The UK public and press enjoy some of the greatest freedoms of anyone in the world to express their opinions and ideas.
The following guide on the rules relating to freedom of speech in the UK examines the legal basis of this right, including the circumstances in which freedom of speech can be fettered, and how shifting attitudes and consensus may change what is classed as free speech.
What does the law say about freedom of speech?
The right to freedom of speech is protected under common law in the UK. It is also guaranteed under Article 10 of the European Convention on Human Rights (ECHR), where “everyone has the right to freedom of expression”. This right is incorporated into UK law by the Human Rights Act (HRA) 1998, where the HRA requires the courts to interpret legislation in a way which is compatible with the Article 10 ECHR right so far as it is possible to do so.
Under the Article 10 right, freedom of expression includes the right “to hold opinions and to receive and impart information and ideas without interference by public authority”. This means that both the public and the press are able to share what they think, feel and believe without censorship, even where the expression of their views may shock, disturb or offend the deeply-held beliefs of others.
This is not, however, an absolute right. It carries with it duties and responsibilities, and can be “subject to formalities, conditions, restrictions or penalties”. Still, any limitations on the right to free speech must be both “prescribed by law” and “necessary in a democratic society”. These limitations must also be proportionate.
Subject to these conditions, Article 10 goes on to specify the limited circumstances in which the right to free speech can be legitimately curtailed. These include where it is in the interests of national security or public safety; for the prevention of crime and disorder; for the prevention of disclosure of information received in confidence; for the protection of health or morals; for the protection of the rights and reputation of others; as well as for maintaining the authority and impartiality of the judiciary.
Does the law regulate freedom of speech?
Article 10 is a qualified right. Accordingly, freedom of expression does not protect all statements, where the rights of the individual must be balanced against the public interest in permitting free speech. This means that the legislature and the courts can intervene to penalise or censor the use of language or conduct which crosses a culturally acceptable line.
However, whether or not a restriction on free speech is justified will depend on a number of different factors, including the identity of the speaker, the context and purpose of the speech used, as well as the actual words spoken or written.
Speech that is intended to inform others, rather than offend, attracts greater protection, where journalism, political campaigning and commentary on matters of public interest generally enjoy a very high degree of protection. Further, even deeply-held beliefs, opinions and ideas cannot be immune from criticism or satire, where the courts have often held that the right to free speech should not be restricted simply because it may be offensive or insulting to others. In essence, a democratic society depends on the freedom to express, debate, challenge and even ridicule opposing viewpoints.
In contrast, freedom of speech does not protect statements that discriminate against or harass, or incite hatred or violence against, other persons and groups, particularly by reference to their race, religious belief, gender or sexual orientation. In the UK, this includes laws specifically designed to protect people from suffering abuse on account of who they are.
In certain circumstances the courts can also intervene to censor the press, and members of the public, where it is in the interests of an individual to do so having regard to their right to respect for private and family life under Article 8 of the ECHR.
What is meant by “hate speech”?
There is no universally-accepted or statutory definition of “hate speech”, but it is generally understood to describe any form of expression which incites violence, hatred or discrimination against other persons and groups, particularly defined by reference to their colour, race, language, ethnicity, nationality, immigration status, religious belief, gender or sexual orientation.
In the UK, there are various different laws which limit, through criminal sanction, these types of extreme forms of expression. In particular, the Public Order Act (POA) 1986 (as amended) creates various offences to control incitement to racial hatred, as well as hatred against persons on religious grounds or grounds of sexual orientation.
Under section 18 of the POA it is a criminal offence to use threatening, abusive or insulting words or behaviour, or to display written material which is threatening, abusive or insulting, either intending to stir up racial hatred or where racial hatred is likely to be stirred up. This offence refers to, for example, making inflammatory public speeches or posting racist comments on social media websites.
Under sections 19 to 23 of the POA, criminality for racial hatred also extends to:
- The publication or distribution of written material that is threatening, abusive or insulting;
- The public performance of a play that involves the use of threatening, abusive or insulting words or behaviour, where criminal liability can attach to either the person who presents and/or directs the performance;
- The distribution, showing and/or playing of a recording of either visual images or sounds which are threatening, abusive or insulting;
- The broadcasting of a programme, or inclusion of a programme in a cable programme service, involving threatening, abusive or insulting images or sounds, where criminal liability can attach to the person providing the programme service, the producer or director, or any person using the offending words or behaviour;
- The possession of racially inflammatory written material, or recording of visual images or sounds, which are threatening, abusive or insulting, with a view to such material being made available to the public.
Under sections 29B to 29G, the POA criminalises the use of words, behaviour, written material, performances, recordings or programmes that incite religious hatred or hatred on the grounds of sexual orientation. In this context, a slightly less restrictive approach is adopted, where a defence protecting freedom of expression is provided for under sections 29J and 29JA.
This defence essentially means that criticising, insulting or ridiculing religious beliefs, or criticising sexual conduct or practices, will not, without more, attract criminal liability. In this way, the law seeks to strike a balance between the right of an individual to be protected against abuse because of their religion or sexual orientation, and the right in general to disagree with, criticise or make light of certain beliefs or behaviours.
Is there an automatic right to privacy?
Under UK law, there is no single overarching right to privacy, although there are various causes of action designed to protect the right to privacy and confidentiality, including the misuse of private information and breach of confidence.
Misuse of private information involves the wrongful or threatened publication of personal information, such as extra-marital affairs, and is often used by celebrities, politicians or other high-profile figures in infringement of privacy complaints. Breach of confidence is an area of law typically used by individuals and businesses looking to protect sensitive and confidential commercial information, such as financial information or trade secrets.
By using the law of privacy, injunctive relief can be sought through the courts to restrict the publication and disclosure of private or confidential information. An injunction, if granted, will restrict the publication and disclosure of the information in question, effectively preventing the press and the public from exercising their freedom of speech in such cases.
These cases can, however, be extremely complex. They involve a careful balancing exercise between various competing interests, including the claimant’s Article 8 right to privacy and the defendant’s Article 10 right to freedom of expression. Section 12(4) of the HRA also provides that the court must have regard to whether or not it is, or would be, in the public interest for the material to be published.
In some circumstances, the right to privacy will far outweigh the right to freedom of expression, such that not only will the claimant be granted anonymity, the court will also ban the reporting of the fact or existence of the order itself. These “super-injunctions” will prohibit the press and public from printing or disclosing any detail about the matter whatsoever.
Is freedom of speech different to freedom of expression?
“Freedom of speech” refers to the fundamental right to express ourselves freely, and to hold our own opinions and ideas, sharing those views with others without fear of censorship or legal sanction. The term “freedom of expression” will often be used synonymously although, in a strict legal sense, this will include any activity where someone receives and imparts information or ideas without state interference, regardless of the medium used.
In either case, the mere fact that an opinion or idea is unpopular, or causes offence is not, in itself, sufficient to restrict the fundamental right to free speech or expression. However, these rights can be legitimately restricted, for example, where the use of speech incites hatred, or where regulation is necessary to protect the rights and reputation of others.
What is censorship of speech?
In the context of either freedom of speech or freedom of expression, censorship refers to the way in which the law can be used to legitimately restrict the ability of the press and the public to express their opinions, or to receive and impart information and ideas.
Censorship in the UK can be used to suppress or control material which could be considered harmful or offensive to others. It can also be used to protect a person’s right to privacy.
Censorship can be achieved, for example, through criminalising the use of certain language or conduct, or by prohibiting the publication or disclosure of private or confidential information.
When is free speech illegal?
It is not automatically illegal in the UK to express an idea or opinion that is unpopular or even offensive. In any democratic society people are free to robustly exchange views, even when these may cause offence. However, where the use of language or conduct can cause harm, for example, where the words used are likely to incite racial or religious hatred, this will be classed as a criminal offence.
In addition to the various “hate speech” offences set out under the POA, it is an offence to use threatening and/or abusive words or behaviour intending or likely to cause harassment, alarm or distress. There are also several other statutory provisions which criminalise the use of certain language or conduct, in this way legitimately restricting the right to free speech.
These include offences under the Terrorism Act of 2006 that criminalise statements or the dissemination of materials that glorify terrorist acts. Under the Communications Act 2003, it is also illegal to send a message via a public electronic communications network that is considered grossly offensive, or of an indecent, obscene and/or menacing character.
What are the sanctions for breaking the law?
The sanctions for breaking the rules in relation to freedom of speech can be significant, regardless of whether the matter has been pursued through the criminal or civil courts.
Hate speech, for example, is classed as a very serious criminal offence in the UK, resulting in a possible term of imprisonment of up to 7 years and/or a fine. Equally, anyone breaching a court order prohibiting the publication or disclosure of private or confidential information could be liable for contempt of court. This is again a very serious offence that can result in a fine, seizure of assets or even imprisonment.
Any breach of UK law that legitimately restricts the right to freedom of speech, especially the laws in relation to hate speech, can also cause significant damage to an individual’s reputation. This is because the strict regulation of hate speech is widely accepted in the UK, where the use of deeply offensive language or conduct is culturally unacceptable to the majority of society. In this way, it is not only the law that regulates freedom of speech, but majority public opinion.
Freedom of speech FAQ’s
Is freedom of speech a human right?
Freedom of speech, otherwise known as freedom of expression, is regarded as a fundamental right in any democratic society. In the UK, this right is enshrined under the European Convention on Human Rights and incorporated into UK law under the Human Rights Act 1998.
What does freedom of expression mean?
Freedom of expression essentially means the freedom to hold opinions and ideas and to share them with others, through any medium, without the state interfering. This right is guaranteed by Article 10 of the ECHR, although there are certain circumstances in which this right can be legitimately restricted in the UK, for example, where an opinion incites racial hatred.
Is there freedom of speech in the UK?
Freedom of speech is a fundamental democratic right in the UK. This is a right protected under both common law and statute. However, with this right comes responsibilities, where the courts and legislature can legitimately restrict freedom of speech in certain circumstances.
What is illegal to say in the UK?
The mere fact that an opinion or idea is unpopular, or even offends certain people, does not prevent a person from exercising their right to freedom of expression under Article 10 of the ECHR. However, it is illegal in the UK to say something, or otherwise express a view, intended to cause harassment, alarm and/or distress, or to incite racial or religious hatred.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
