FAQs

There is a renewed interest in the right to freedom of expression due to the ongoing war in the Middle East between Israel and Gaza, sparked by the Hamas terrorist attacks on October 7^th, 2023. We have been asked where the legal line between free speech and ‘hate speech’ is drawn, specifically in the current context and within the online sphere. There is no simple answer to this question, but the below FAQs outline the relevant laws to be aware of and, we hope, will shed light on the boundary between free speech and ‘hate speech’. (The relevant laws in Scotland and Northern Ireland are slightly different, although they do overlap, so the following note only applies to England and Wales.)

Freedom of Expression

1. Freedom of expression is a right that is robustly protected by both common law and statute within the United Kingdom. The Human Rights Act 1998 (HRA) gives domestic effect to Article 10 of the European Convention on Human Rights (ECHR), which says that “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.”
2. Lord Justice Sedley famously said in a judgment that “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative… Freedom only to speak inoffensively is not worth having”.[1]
3. This right is, however, a qualified right. Article 10(2) of the ECHR establishes that freedom of expression may be restricted if it is prescribed by law, in the interest of a legitimate aim (e.g for the protection of the rights or reputation of others or in the interests of national security or public safety), and if the restriction is proportionate. When evaluating whether a measure is proportionate the relevant decision maker should ask: “Could a less intrusive measure achieve the legitimate aim in question?”
4. The right to freedom of expression must often be finely balanced against other rights. However, the European Court of Human Rights (ECtHR) has often reiterated the foundational nature of the right, citing it as “essential” to democracy and progress.[2]
5. When balancing competing rights, the right to political expression (versus, for example, speech that is gratuitously offensive) carries considerable weight. In the words of Lord Nicholls “freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts.”[3]

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Online Hate Speech FAQsRead More »

There is a renewed interest in the right to freedom of expression due to the ongoing war in the Middle East between Israel and Gaza, sparked by the Hamas terrorist attacks in southern Israel on October 7^th 2023. We have been asked by some of our members what duties universities have to protect students’ freedom of expression.

Below is a summary of the relevant laws that apply in England and Wales. The relevant laws in Scotland and Northern Ireland are slightly different (although they do overlap) – different from the laws in England and Wales and different from each other – and we haven’t addressed those here.

Free Speech on Campus

• Universities must ensure that students can exercise their right to freedom of expression within the law.
• S.43(1) of the Education (No 2) Act 1986 requires universities to “take such steps as are reasonably practicable to ensure freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers”. In particular, subsection 3 of the 1986 Act places a legal obligation on the governing body of a higher education provider – hereafter referred to as a university – to issue a code of practice to facilitate discharge of the core subsection 1 duty. In turn, subsection 4 requires a university to “take such steps as are reasonably practicable” to secure compliance with that code of practice. 
• The Higher Education (Freedom of Speech) Act 2023, which is likely to come fully into force in summer 2024 and only applies to universities in England, will replicate the existing protections set out above, and in addition place universities under a legal obligation to promote the importance of freedom of speech within the law. Crucially, the Act also creates a new regulator to adjudicate complaints about free speech infringements – the Director for Freedom of Speech and Academic Freedom of the Office for Students – and in some circumstances the Act will allow complainants to sue for damages arising from free speech violations.
• Under s.3 of the Human Rights Act 1998 (HRA) all UK legislation must be interpreted, as far as possible, in a way that is compatible with the European Convention on Human Rights (ECHR). The ECHR includes Article 10, which establishes that “everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.”
• Public universities are also “public authorities” for the purpose of s.6 of HRA. As such, they have a specific duty not act in a way that is incompatible with a person’s rights under the ECHR.
• In the case of Handyside v UK (App. No. 5493/72) the European Court of Human Rights stated that “freedom of expression constitutes one of the essential foundations of such a [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to [legitimate restrictions] it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” 

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Free Speech and Harassment on Campus FAQsRead More »

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The Freedom of Information Act (FoIA) 2000 was introduced to ensure that public authorities in receipt of taxpayers’ money are transparent about how they exercise that authority. Under the FoIA, public authorities in England, Wales and Northern Ireland must routinely make public certain types of information about their activities, including accounts, policies and procedures, and must respond when members of the general public request information from them – a Freedom of Information (FoI) request. The Freedom of Information (Scotland) Act 2002 gives the same rights to people in Scotland.

Who can I request information from?

The FoIA applies to organisations designated as public authorities. Public authorities include publicly funded schools, colleges and universities, the NHS, the police and emergency services, government departments and local councils and museums, galleries, theatres and companies that are publicly funded or owned. Members of parliament and political parties are not public authorities for the purposes of the FoIA. Although the BBC is designated as a public authority, under Schedule One, Part VI of the FoIA it only has to provide information if it is held for “purposes other than those of journalism, art or literature”. This can give the BBC quite broad powers to decline FoI requests. In general, you cannot make an FoI request to a private company or business. For example, you could make an FoI to a publicly-owned library, but not to a privately-owned bookshop.

If you are unsure whether or not the organisation you want to request information from counts as a public authority, you can check with the Information Commissioners’ Office. (The ICO also publishes guidance on how to submit FoIs.)

What information can I request?

An FoI can be used to request access to all recorded information held by public authorities. This includes emails, letters, computer files, printed documents, and audio and video recordings, but does not extend to information that is unrecorded. For example, the written minutes of a meeting would be disclosable, but if no minutes were taken then the public authority would not be obliged to ask attendees what took place to answer an FoI. The FoIA also applies to recorded information not authored by the public authority itself – for example, letters received from members of the public.

You cannot request your own personal data via an FoI. This can be done by making a Subject Access Request instead.

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How to Make a Freedom of Information RequestRead More »

We have been contacted by many members recently asking what to do about the fact that their employer has asked them to declare their preferred gender pronouns, usually below their name at the bottom of an email or official correspondence. Consequently, we thought it would be useful to pull together some FAQs on this issue. In case there are any terms you do not understand we have included a short glossary at the end.

Background

Controversies over pronoun use are part of a wider public debate about transgender identity. This debate touches on issues such as women’s sex-based rights, how doctors and other medical professionals should respond to adolescents presenting with gender dysphoria and whether it is fair for transwomen athletes to compete against biological women in women’s sports. Some people think that using a trans person’s preferred pronouns, or telling people what your preferred pronouns are, is tantamount to taking a pro-trans position. For this reason the subject of pronouns, while seemingly trivial, is deeply controversial.

Some trans people and lobby groups claiming to represent them – like Stonewall, Mermaids and Gendered Intelligence – believe that ‘deadnaming’ or ‘misgendering’ a transgender person, or failing to use their preferred pronouns, can be actively harmful because it invalidates or fails to acknowledge their true ‘gender identity’. One argument for making workplace gender declarations common practice when introducing yourself or corresponding with someone by email is that it makes it less likely that a person will inadvertently ‘harm’ a trans person in this way.

Many businesses and employers, prompted by organisations like Stonewall, have introduced policies and practices designed to better support trans and non-binary employees. Some of these initiatives have been in line with equalities legislation, such as the provision of medical leave for employees undergoing gender reassignment. However, some workplace policies relating to pronoun declarations are, we believe, in breach of people’s speech rights.

The Free Speech Union supports the rights of those individuals who voluntarily choose to declare their gender pronouns at work AND the rights of those who choose not to. If you are facing pressure at work to declare your preferred gender pronouns, here’s what you need to know.

What do workplace pronoun declarations have to do with free speech?

For some people, declaring, or not declaring, your preferred pronouns has come to symbolise the position the speaker takes on the political debate about gender identity. Among our members, we’ve found it common for them to be perfectly at ease with using a trans person’s preferred pronouns, regarding it as a matter of simple politeness, but they draw the line at compelling people to do this and do not want to make a public declaration of their preferred pronouns because they think that would be tantamount to affirming the validity of gender identity ideology.

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FAQs on What to Do if You Are Asked to Declare Your Preferred Pronouns at WorkRead More »

Before reading these Frequently Asked Questions, please take a look at the legal disclaimer at the foot of this page.

The Free Speech Union has recently had success in securing deletion of non-crime hate incident (NCHI) records. We set out below how to go about it. If you need help getting an NCHI deleted, please contact us at [email protected].

Background

Police forces follow guidance issued by the College of Policing, the professional body for the police in England and Wales. The College operates at arm’s length from the government, though it is a company legally controlled by the Home Secretary.

The College issues Hate Crime Operational Guidance (HCOG) – in Scotland, equivalent guidance is issued by Police Scotland. Under HCOG, an NCHI is defined as “any non-crime incident which is perceived, by the victim or any other person, to be motivated by a hostility or prejudice” based on a person’s protected characteristic (their race, sexuality, sex, etc.).

HCOG explicitly states that the ‘victim’ does not have to justify or provide evidence of their belief that an incident was motivated by hostility. The perception of hostility suffices. Police officers ‘must’ record an NCHI if the victim perceives hostility, and are guided not to directly challenge the victim’s perception.

Is the recording of NCHIs lawful?

As it stands, all NCHIs on police records were recorded under guidance that the Court of Appeal has found to be unlawful. While the lawfulness of an individual NCHI can only be determined on the facts of the case, there is a good argument that all NCHIs issued under the unlawful guidance are themselves unlawful.

Former police officer Harry Miller challenged the College and Humberside Police over the recording of an NCHI concerning lawful tweets he had posted. On his first attempt, the High Court agreed that Humberside Police unlawfully interfered with Harry’s right to freedom of expression by confronting him at his workplace about his social media activity and asking him to “check his thinking”. However, it held that the guidance itself – the HCOG – was lawful.

On appeal to the Court of Appeal, Harry made a breakthrough. The Court agreed that the HCOG was unlawful. By requiring officers to record NCHIs on a no-questions-asked basis, the HCOG went too far in restricting free expression – it guided officers to believe the victim in all cases, even if on an objective analysis the speech complained about was clearly not motivated by hostility or prejudice based on the victim’s protected characteristic. The Court therefore ordered the College to amend its guidance.

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FAQs on How to Get a Non-Crime Hate Incident Removed From Your Police RecordRead More »

The Government is currently holding a consultation on proposals to reform the Human Rights Act 1998. This is an incredible opportunity to push for the maintenance and strengthening of the right to freedom of expression within the UK – and if you’d like to help we’ve created these FAQs suggesting how you might respond.

Background 

We are concerned that the UK’s domestic courts have strayed from the original purpose of the European Convention on Human Rights (“the Convention”), an international initiative wholly separate from the European Union, spearheaded by Winston Churchill as a way of safeguarding liberty in Europe in the wake of World War II.  

“The right to guide the course of world history is the noblest prize of victory.”

Winston Churchill

In the process of the Convention’s creation, freedom of expression (Article 10) was heralded as “the touchstone of all freedoms”. Yet when the Human Rights Act (“the HRA”) was passed – which gave effect to the ECHR in the UK’s domestic law – this was forgotten. Indeed, our domestic courts have allowed this primary right to become more and more neglected. This is particularly so in relation to the balance between the right to privacy (Article 8) and the right to freedom of expression.   

We believe this reflects a broader neglect of the right to freedom of expression within British society, as evidenced by the FSU’s mountainous work load, particularly in universities.  

The Government is proposing to create a “Modern Bill of Rights”, something we welcome as an opportunity to re-establish the importance of freedom of expression, as originally embedded in the Convention, within UK law.

How you can help 

Anyone can respond to this consultation, whether you have a legal background or not, and we would encourage you to respond to those questions that relate to the maintenance and strengthening of free speech (1, 4, 5, 6, 7, 8, 9, 12, 20, 23).  You don’t have to answer all questions. 

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FAQs on the Government’s Consultation About Reforming the Human Rights ActRead More »

Before reading these Frequently Asked Questions, please take a look at the legal disclaimer at the foot of this page.

Background

Members often contact us with queries arising from their use of social media. They are concerned that putting political and moral opinions online, negative views about an employer, or even jokes, seem increasingly to be subject to disciplinary measures. This is clearly an area of much confusion, where the boundaries between working life and personal life – between the public and private domains – are often blurred.

Comments made outside of work on social media can be a potentially fair reason to dismiss an employee. In most cases, a dismissal will be fair in law if the employee’s comments are found to have violated the employer’s rules of conduct or brought the employer into disrepute.

Misconduct and disrepute are broad terms and encompass an unpredictable range of circumstances. In our experience, while the Equality Act 2010 will not usually apply to social media use outside of work, employers will often define misconduct or disrepute with reference to the language and spirit of that Act – i.e., discrimination or harassment relating to ‘protected characteristics’.

Internal rules governing workplace and personal conduct are sometimes made very clear in company policies. However, the degree of detail and the extent of restrictions vary a great deal between workplaces and can be unclear. Social media policies are not always read by employees, but very serious issues can arise, for example where breaches of them are used as leverage by an employer to get rid of someone whom they simply no longer wish to employ.

Some of the most common types of problems reported to us could possibly be avoided if social media policies were clearer and better disseminated, or if the individuals concerned took some precautionary measures to clarify the line between their personal views and their professional profile. We give tips on this below. However, it is important to recognise that law and practice when it comes to social media are still evolving and expert legal advice may be well necessary if problems occur.

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Social Media and the WorkplaceRead More »

Before reading these Frequently Asked Questions, please take a look at the legal disclaimer at the foot of this page.

Background

Here at the Free Speech Union we are receiving a growing number of queries about workplace “anti-racism” initiatives. Some people are unhappy with certain training programmes being implemented in the name of “anti-racism” or tackling “bias”. Others have been asked to express their support for the Black Lives Matter movement by their employer or their colleagues.

These individuals are concerned for a number of reasons. Some of them think the training programmes are based on dubious theories – such as Critical Race Theory – that ascribe collective guilt to white people about the slave trade and colonialism and ignore the progress that has been made in race relations in Britain over the past 50 years. Some have reviewed the evidence and found that diversity training can in certain circumstances make people more discriminatory, not less. Some worry that the premise of these programmes is that bias or prejudice is the sole cause of unequal outcomes between different groups, when they believe there are multiple causes of these discrepancies, of which unconscious bias is only one. Finally, some fear that they and their colleagues will feel forced into potentially divisive identity boxes as part of the training they’re being asked to do and there’s a risk their workplace may become “racialised” as a consequence.

These are all perfectly legitimate points of view, but many people are worried that if they voice these concerns – or ask to opt out of the training – then their job, career progression, reputation and workplace relationships will be at risk.

This set of FAQs offers information if you are dealing with such a situation in your workplace. We will be developing these FAQs in the coming weeks and months to address the evolving issues raised by our members.

We recommend that you join the Free Speech Union (FSU) before raising these issues with your employer. The FSU supports people in their right to freedom of expression and belief. We offer advice and advocacy for people who want to participate in these debates in an open, evidence-based way and may take up your case if you face penalties for exercising your lawful right to free speech. Sign up before you do anything else!

We did a good deal of research in the course of compiling this first set of FAQs, and one of the people who helped with that research, a journalist called Carrie Clark, has written up her findings in the form of a briefing paper. Carrie looked specifically at the Implicit Association Test, a diagnostic tool that sits at the heart of most forms of diversity training. It’s worth reading in full, but the short version is that this test has been almost completely discredited in the scientific literature since it was first devised in 1998. You can read a summary of Carrie’s paper here.

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Anti-Racism and Unconscious Bias TrainingRead More »