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 7th, 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
- 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.”
- 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”.
- 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?”
- 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.
- 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.”