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Letter to Ofcom Asking For its Censorious Coronavirus Guidance to be Withdrawn

In my capacity as the General Secretary of the Free Speech Union, I wrote to the Chief Executive of Ofcom, Dame Melanie Dawes, on 24th April to complain about its reprimand of Eamonn Holmes. According to the regulator, the breakfast television presenter had said something that “could have undermined people’s trust in the views being expressed by the authorities on the Coronavirus and the advice of mainstream sources of public health information“. Holmes’s sin, in Ofcom’s eyes, was to say on ITV’s This Morning on 13th April that any theory running counter to the official Government line – such as the one linking 5G masts and COVID19 – deserved to be discussed in the mainstream media. This was in spite of him saying the 5G conspiracy was “not true and incredibly stupid”. Ofcom said this view – the view that such theories deserved a public hearing, not that they were in any way right or plausible – was “ill-judged and risked undermining viewers’ trust in advice from public authorities and scientific evidence”.

In my letter to Dame Melanie, I pointed out that if Ofcom is going to prohibit views being discussed on television that might risk undermining viewers’ trust in public authorities during this crisis, that could easily be extended to anyone challenging the Government’s official line on a number of issues, not just the link between the virus and 5G masts. For instance, would Ofcom have reprimanded a broadcaster that challenged the advice of Public Health England, issued on 25th February, that it was “very unlikely that anyone receiving care in a care home or the community will become infected”? That advice was supposedly based on “scientific evidence”, yet as we now know it turned out to be wrong and the fact that hospitals discharged elderly patients back into care homes without first confirming that they were not infected with COVID-19 is one of the reasons that, according to the ONS, as of 1st May, 37.4% of all Covid deaths in England and Wales have occurred in care homes.

As I said in my letter, given that bad advice and misinformation about the virus is being disseminated in the public square, both by authorities like Public Health England and conspiracy theorists like David Icke, the best way to minimise harm befalling the public is not to prohibit public discussion of that advice and information, but to encourage it, so that members of the public (and care home managers) can make informed decisions about what advice to follow and what information to believe. To take the example of the theory Eamonn Holmes was referring to, if broadcasters aren’t allowed to discuss whether there’s a connection between 5G masts and the symptoms associated with COVID-19 – and present its exponents with the overwhelming evidence that there is no such connection – people are more likely to believe the theory, not less. They will think, “If it’s untrue, why is discussion of it forbidden by a state regulator?” As the US Supreme Court Justice Louis Brandeis said in his famous Whitney v. California opinion in 1927, “If there be time to expose through discussion the falsehood and fallacies… the remedy to be applied is more speech, not enforced silence.” In other words, sunlight is the best disinfectant.

In addition to Ofcom’s rationale for reprimanding Eamonn Holmes being based on the mistaken belief that the most effective way to persuade people that conspiracy theories and fake news are untrue is to forbid their discussion, there’s a further problem, which is the arbitrariness with which Ofcom applies that principle. If Ofcom is going to provide itself with a license to prohibit discussion among its licensees of anything likely to risk “undermining viewers’ trust in advice from public authorities” then why did it not reprimand those broadcasters who publicised the fact that Professor Neil Ferguson, one of the key scientists advising the Prime Minister on how to respond to the pandemic, broke social distancing rules to spend time with his girlfriend? Surely, that was more likely to undermine “people’s trust in the views being expressed by the authorities on the Coronavirus and the advice of mainstream sources of public health information” than any discussion of the theory linking 5G masts to coronavirus?

Of course, no sensible body would seek to restrict the reporting of Professor Ferguson’s breach of the lockdown rules, least of all the Free Speech Union. But that reporting engages precisely the same issue identified by Ofcom, namely, it had the potential to reduce the public’s trust in the Government’s advice. So how does Ofcom distinguish between matters which, when broadcast, reduce trust but are nonetheless legitimate in its eyes, and those which are not? It does not say. Yet Ofcom hasn’t reprimanded any broadcasters for publicising or discussing Ferguson’s behaviour. Given how arbitrary Ofcom’s application of its own rules is, how can broadcasters reasonably be expected to comply with them? What Lord Sumption said about the law in a Supreme Court judgement issued last year applies to Ofcom’s rule prohibiting discussion of views that could undermine viewers’ trust in public authorities: “The measure must not therefore confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself. Nor should it be couched in terms so vague or so general as to produce substantially the same effect in practice.”

Ofcom’s reprimand of Eamonn Holmes was based on a guidance note it issued to broadcasters about the coverage of the coronavirus crisis on 23rd March, the same day the Government imposed the lockdown, confining people in their homes unless they had a “reasonable excuse” to be outside. The right to free speech was among the few civil liberties not suspended by the Government that day, but Ofcom took it upon itself to curtail it anyway. In my letter to Dame Melanie, I asked Ofcom to withdraw its reprimand of Holmes and issue a press release affirming the importance of freedom of expression, and provide assurances that in future it will not seek to stifle the expression of dissenting views about coronavirus or the Government’s response to the pandemic. It has not done so. Therefore, I’ve written a follow-up letter – a letter before claim sent pursuant to the Pre-action Protocol for Judicial Review under the Civil Procedure Rules – asking Ofcom to withdraw its guidance note. If it does not, the Free Speech Union will ask the court for permission to apply for a Judicial Review of the guidance.

The right to free speech is one of our most precious liberties – perhaps the most precious of all – and the fact that we’re in the midst of a public health crisis is a reason to protect it, not curtail it. All of us, whether scientists, politicians or ordinary citizens, are doing our best to understand the threat posed by SARS-CoV-2 and how best to minimise the harm it causes, both directly and indirectly. There are, at present, no settled views about any of these issues, certainly no consensus among scientists that can be described as “the science”. Allowing everyone to express their views on these matters freely, without the threat of being sanctioned by a state regulator if those views happen not to accord with those of the Government or other public authorities, is the best way to achieve that understanding.

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De Montfort University follow-up

You’ll recall that I wrote to an administrator at De Montfort University in April to complain about his high-handed treatment of one of our members – a journalism student – who’d been put through a disciplinary process for supposedly bringing the University into disrepute. This was after a left-wing activist had lodged a complaint about him following a routine Twitter spat. The University concluded that our member was indeed guilty and threatened him with expulsion if he repeated the offence. This is a clear breach of his right to freedom of expression under Article 10 of the European Convention on Human Rights, as well as being contrary to the University’s own free speech policies and inconsistent with its legal duty to uphold free speech under s.43 of Education (Nº 2) Act 1986, as I pointed out in my letter. I asked the administrator to explain himself, and warned him that we will legally challenge any further sanctions that are imposed on our member. You can read that letter here. Disappointingly, the letter wasn’t even acknowledged, let alone responded to. Consequently, I’ve written a follow-up letter, this time to De Montfort’s Vice-Chancellor, copying in Michelle Donelan MP, the Universities Minister. You can read that letter below.

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Sheffield University follow-up letter

I wrote to Jake Verity, the President of Sheffield University Students’ Union, last month to complain that a free speech society that some of our members had set up at the University had been designated a “red risk” by the Students’ Union. That means the society’s officers have to attend “risk assessment” training and cannot invite any speakers on to campus without first having to submit a list of prospective speakers to the Students’ Union three weeks ahead of time for “full and final approval”. The students reached out to the FSU for help and, with the aid of the Legal Advisory Council, I wrote to Mr Verity, copying in the Vice-Chancellor, reminding him that both the Students’ Union and the University have a legal duty to uphold freedom of expression, and asking him to reassure me that he won’t withhold approval from any speaker the society proposes to invite except in truly exceptional circumstances and when legally permitted to do so. You can read my letter here. After not receiving a reply for several weeks, I managed to attend a Zoom meeting of the Council of the Students’ Union as an “observer”. At that meeting I managed to get a Council member to ask Mr Verity why he still hadn’t responded to my letter. As a result, he did respond the following day, but he didn’t provide me with the assurances I was after. Consequently, I’ve written back, asking him to do so. You can read his letter here and my reply below.

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Submission to the Office of the United Nations High Commissioner for Human Rights

The UN’s Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, David Kaye, issued a call earlier this year for submissions on academic freedom to help him prepare a report for the 75th Session of the General Assembly in the autumn. The Free Speech Union submitted the document you can read below which, in due course, will be published on the website of the Office of the United Nations High Commissioner for Human Rights. This document represents the views of the Directors, but not necessarily the members of the advisory councils. The FSU is indebted to Professor Eric Kaufmann for helping to write this submission.

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Letter to Change.org regarding Posie Parker

One of our members – Kellie-Jay Keen, more commonly known as Posie Parker – had a petition removed by Change.org on the grounds that information contained in her petition was “identified as hate speech”. The petition read: “Keep the dictionary definition of woman to mean adult human female.” This was in response to another petition calling for the Oxford English Dictionary to change the definition of woman to include “transgender woman”. Change.org claims to be a politically neutral platform that believes in free speech, yet it has taken down Posie Parker’s petition and left the other one on its platform where it has attracted nearly 35,000 signatures. We have written to Change.org asking them to reinstate Posie Parker’s petition, admit that they were wrong to remove it and acknowledge that saying a woman is an adult human female is not “hate speech”.

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Letter to Sheffield University Student Union about the free speech society

In February, a group of students at Sheffield University tried to set up a free speech society, but when they applied for official recognition from the Students’ Union it was declined. The group appealed and won, but have now been told their society is a “red risk”. That means they must attend “risk assessment” training and cannot invite any speakers on to campus without first having to submit a list of prospective speakers to the Students’ Union three weeks ahead of time for “full and final approval”. (One of the co-founders of the society, Ewan Somerville, has written about the difficulties he and his colleagues have faced in the Telegraph.) The students are now worried that if they invite anyone controversial to speak, the Students’ Union will withhold permission. Two of them reached out to the Free Speech Union for help and, with the aid of the Legal Advisory Council, I wrote to the President of the Students’ Union, Jake Verity, copying in the Vice-Chancellor, reminding him that both the Students’ Union and the University have a legal duty to uphold freedom of expression and asking him to reassure me that he won’t withhold approval from any speaker the society proposes to invite except in truly exceptional circumstances and when legally permitted to do so. The letter was dated 2nd April. I finally received a reply on 1st May. You can read both my letter and Jake Verity’s reply below. The reply goes part of the way to meeting our concerns, but only part of the way, so I will be writing a follow-up letter shortly.

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Letter to Ofcom Following its Decision to Sanction ITV and London Live

On April 20th, Ofcom, the broadcasting watchdog, reprimanded both ITV and London Live for comments made by Eamonn Holmes and David Icke about links between 5G technology and coronavirus. Holmes’s sin, according to the regulator, was to say on ITV’s This Morning that the theory linking 5G and coronavirus deserved to be discussed in the mainstream media, even though he agreed with his co-presenter that it was “not true and incredibly stupid”. Ofcom said that this view – the view that the theory deserved a public hearing – was “ill-judged and risked undermining viewers’ trust in advice from public authorities and scientific evidence” and could lead to “significant harm to the public”. (You can read the adjudications here.)

The Free Speech Union regards these decisions as highly inimical to freedom of expression for reasons that we have set out in this letter, which was sent to Ofcom on April 24th. During the coronavirus crisis, the state has substantially increased its powers and imposed restrictions on long-established liberties. However, no such restrictions have been placed by the Government on the right to free speech. In fact, it is vital that this right should be upheld so that the Government’s decision to impose wide-ranging restrictions can be scrutinised and challenged by broadcasters and others. We have asked Ofcom to withdraw these sanctions and issue a press release affirming the importance of free speech and assuring the public it will not seek to stifle the expression of dissenting views without strong and compelling reasons for concluding that such expression will cause harm.

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Reply from Exeter College and the Free Speech Union’s Response

Professor Sir Rick Trainor, the Rector of Exeter College, has responded to the Free Speech Union’s complaint about the no-platforming of Professor Selina Todd on 29th February. You can see the FSU’s original complaint below, as well as Professor Trainor’s reply, the FSU’s response, and Professor Trainor’s reply to that. We are pleased the College took our complaint seriously and investigated it in good faith, and are generally satisfied with its response. But we have some reservations about the conclusions of the Complaints Panel, which we’ve set out in our response.

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Letter of Complaint to De Montfort University About Breaching the Speech Rights of an FSU Member

A journalism student at De Montfort University and a member of the FSU alerted us to the fact that he was being formally investigated for bringing the University into disrepute after a left-wing activist made a complaint about him. He had got into an argument with this activist on Twitter over the prosecution of Daniel Thomas, a colleague of Tommy Robinson’s, for identifying the victim of a sexual offence. The student wasn’t defending Thomas’s behaviour, merely objecting to the fact that the left-wing activist was revelling in his prosecution, as if Thomas were a bigger criminal than members of grooming gangs convicted of sexual offences. Nothing the student tweeted in the course of this exchange was unlawful, nor was it in breach of any of Twitter’s rules. But following the activist’s complaint, the student’s department at De Montfort University decided to launch a formal investigation and, in short order, found him guilty and threatened him with expulsion from the University if he repeated the offence. This is a clear breach of the student’s right to freedom of expression under Article 10 of the European Convention on Human Rights, as well as being contrary to the University’s own free speech policies and inconsistent with its legal duty to uphold free speech under s.43 of Education (Nº 2) Act 1986. The FSU was minded to mount a legal challenge immediately, but was dissuaded from doing so by the student. Instead, we have written to the investigating official and pointed out that De Montfort University’s behaviour is contrary to the law protecting freedom of speech, asked him to explain himself, and warned him that we will legally challenge any further sanctions that are imposed on our member. For a university to punish a journalism student for exercising his lawful right to free speech really is a scandal.

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