The FSU’s legal battle against PayPal – an update
The FSU is continuing its fightback against PayPal following the company’s attempt to demonetise us last year. In a bid to find out why our account was suspended without prior warning, meaningful explanation, or recourse to a proper appeals process, we’ve engaged in lengthy legal correspondence with PayPal. Sadly, the company that professes on its Twitter page to be “open for all” has decided to adopt a policy of non-engagement, so our next step will be to write formal letters of complaint to the Financial Conduct Authority and the Competition and Markets Authority.
As it happens, PayPal’s decision to give us the brush-off is a useful piece of intel, not least because the Government has just begun its review of the UK Payment Services Regulations. In the review’s accompanying ‘call for evidence’, the Government makes clear its view that “as a minimum” and “without deviation, a notice-period and fair and open communication with a customer must apply in situations which relate to termination on grounds other than suspected or actual criminal offences, or when otherwise allowed by law”. It goes without saying that the FSU’s view of PayPal’s approach to “fair and open communication” will be included in our submission to the government consultation.
Speaking of which, the FSU needs your help to make its submission as compelling as possible. We’re looking for examples of politically motivated financial censorship that you, or anyone you know, may have experienced or heard about. Many of our members and supporters will know the backstory to this public consultation.
In the wake of PayPal’s attempt to deplatform our organisation, Sally-Ann Hart and Andrew Lewer tabled an amendment to the Financial Services and Markets Bill. The amendment addressed “refusal to provide services for reasons connected with freedom of expression” and stated that: “No payment service provider providing a relevant service may refuse to supply that service to any other person in the United Kingdom if the reason for the refusal is significantly related to the customer exercising his or her right to freedom of expression.”
However, the amendment was withdrawn after the City Minister, Andrew Griffith, promised Ms Hart and Mr Lewer that the issue they were seeking to address would be included in the terms of reference of a forthcoming statutory consultation about the Payment Services Regulations.
All of which brings the story up to date – and with the consultation having now begun, it’s great to see that it will cover the regulatory framework currently applied to over 1,000 firms authorised as payment and e-money services in the UK. The existing rules, which Britain adopted when it was part of the EU, already require payment companies to give customers notice when they terminate an account. But, as per the agreement with Ms Hart and Mr Lewer, the Review will now assess whether clearer guidelines are needed on when companies can withhold or withdraw services from customers and will pay particular attention to the issue of politically motivated financial censorship.
We think this could be an important moment – the Government appears keen to keep an open-mind on the matter, which means there’s now a window of opportunity for us to shape an aspect of public policy that will help to check the creeping trend towards a Chinese-style social system in countries like ours.
On the subject of the Government’s open-mind, it’s particularly encouraging to see in the consultation that the Government makes it “very clear” that “the legitimate expression of differing views, is an important British liberty”, that it “does not support ‘cancel culture’” and that “regulations must respect the balance of rights between users’ and service providers’ obligations, including in relation to protecting the freedom of expression of anyone expressing lawful views”.
In order to provide the Government with as many instances of financial censorship as we can, we’re asking our members and supporters to send us any examples they may have come across, particularly if it involves them. To be clear, we’re after examples of financial services companies (such as high street banks), payment processors (like PayPal) and crowdfunding platforms (IndieGoGo) either withholding or withdrawing services from customers because they disapprove of their perfectly lawful views.
FSU to fight legal battles to protect the speech rights of writers
Since we launched in February 2020, a growing number of writers have come to us for advice and support – Gillian Philip, Julie Burchill, Helen Joyce, Allison Pearson and Holly Lawford-Smith – and around 300 authors have now joined as members. It’s becoming increasingly clear that freedom of expression is under severe pressure within the literary world, with publishers and literary agents often failing to defend their authors when their speech rights come under attack.
Two of the FSU’s ongoing cases highlight some of the biggest threats that writers face in an increasingly politicised literary landscape.
Sibyl Ruth worked for the literary agency Cornerstone as an editor, purportedly on a self-employed basis, until she was dismissed for tweeting lawful and innocuous gender-critical views. With the FSU’s help, she’s now filed a claim for discrimination and is currently preparing for an upcoming hearing.
In the publishing industry, self-employment and/or temporary contract work of this kind is rife and, as Sibyl’s case demonstrates, empowers employers to side-step employment protections. As the author Nick Tyrone pointed out in Spiked recently, the fact that so many authors are getting “openly ripped off” and left with few if any workers’ rights, is becoming a “major problem” in the publishing industry.
Whether writers like Sibyl are contractually employed is therefore an important question of law, as without such status they don’t benefit from employment legislation preventing unfair dismissal. If the FSU can take a case like Sibyl’s to court and get a ruling that ‘self-employed’ authors are in fact workers, it will be of ground-breaking importance for pay and conditions in the industry.
And not just for pay and conditions, because when publishers designate freelancers and other precariously employed people as ‘independent’, they don’t just “rip them off”, as Nick Tyrone puts it – they also gain the power to silence them. The ruling handed down in Maya Forstater’s Employment Tribunal last year established that gender critical beliefs are protected under the Equality Act 2010, but that judgement is rendered meaningless if gender critical authors like Sibyl Ruth can simply be described as ‘contractors’ and deprived of its protections.
Similar issues are at stake – and capable of legal resolution – in the case of former children’s author and gender critical feminist Gillian Philip.
With the generous help of FSU supporters, Gillian last year began a legal claim for unlawful discrimination against her former publishers, Working Partners and HarperCollins, on the grounds that they terminated her contract to write children’s books because she stood up for JK Rowling on Twitter. She convinced the Employment Tribunal that her claim for discrimination was submitted in time, but lost on her claim that book packager Working Partners employed her as a ‘worker’ rather than a ‘contract writer’ and therefore wasn’t entitled to protection under the Equality Act 2010.
Gillian now has leave to appeal that judgement in the Employment Appeal Tribunal, with a hearing scheduled for September 2023. A win would be a game changer – across the UK, the publishing industry would be required to treat assembly-line writers as ‘employees’, with all the attendant employment protections and protections against unlawful discrimination that follow.
It’s time these high-handed employment tactics of the UK publishing industry were challenged, and the FSU is proud to be leading the charge in the fight to defend the legal rights of thousands of precariously employed people who make their living through creative expression.
We hope that as many authors as possible will join the FSU, whether to protect themselves, to defend their peers or to build a public voice capable of putting the case for freedom of expression as robustly as possible, and to that end we’ve set up a Writers’ Advisory Council. If you know of anyone that might be interested in this offer, please do direct them to this page.
Professional regulatory bodies and the slow creep of members’ speech codes
The only chartered professional body for actuaries in the UK, the Institute and Faculty of Actuaries (IFoA), has begun a consultation on amending the Actuaries’ Code (AC) to include ‘diversity, equity and inclusion’ – or DEI – requirements. The AC is the profession’s ethical code of conduct and one of the foundational documents governing the behaviour of members of the IFoA, so any changes will have considerable ramifications – not least because the IFoA has 32,000 members, including 15,000 student members and 46 partner universities.
It’s clearly important for professionals to be held to high standards of behaviour, and as with many other, similar codes, the Code applies to members across a very broad range of circumstances – wherever conduct could reasonably be considered to reflect upon the profession. So, for example, social media posts or political activity in members’ personal lives are covered by the Code.
I get that the IFoA wants to encourage decorum and politeness among its members, and the current AC does appear like the modern equivalent of an ‘etiquette code’, which any reasonable person might be expected to conform. However, the proposed new guidelines in the IFoA’s consultation show worrying signs of mission creep.
Take the proposed amendment that “members must show respect for everyone and treat others fairly”. At first glance, that might seem reasonable. But the problem with words like ‘respect’ is that their meaning is potentially – sometimes designedly – vague and subjective. Is the IFoA talking about ‘respecting’ individuals as fellow members of society, for instance, or ‘respecting’ their self-declared identity? The two aren’t equivalent – the latter might require members of the IFoA to use the preferred gender pronouns of trans people, for instance.
And what about other people’s views? Will IFoA members be expected to respect them? When Richard Dawkins opines on religion, his manner may well be respectful, if by respectful we mean ‘polite and courteous’. But individuals with strongly held religious views may not find him at all respectful, if by respectful we mean ‘deferential and unquestioning’. So could an IFoA member be found to be in breach of the new Code simply for showing support for a public figure who expresses perfectly lawful criticisms of other peoples’ beliefs?
Then there’s the stipulation that “members should encourage diversity, equity and inclusion”.
Many individuals and groups consider equity, in particular, to be a divisive concept – certainly in the way it is most usually interpreted in our public discourse. One need only look at ongoing debates in the political arena on related topics such as ‘white privilege’, ‘anti-racism’ and ‘unconscious bias’ to see how damaging it could be to impose this requirement on members. If this requirement were to be incorporated in the Code, it could be used as a way of pointing the finger and hounding out individuals from the IFoA (or putting them through unnecessary and expensive disciplinary processes) simply for expressing perfectly lawful and reasonable political views. I fear that this proposal, if implemented, could have a very chilling effect on debate and discussion within actuarial communities. Ultimately, a person’s understanding and interpretation of DEI is a matter of conscience, and therefore ‘encouragement’ of DEI should remain a matter of conscience.
If any FSU members who are also members of the IFoA are thinking of submitting a response to the consultation and want to discuss the issues at stake, then please do feel free to get in touch with the team via [email protected].
The IFoA’s initial instincts highlight the changing role of professional organisations in regulating the behaviour – and speech – of their members. Where once these bodies would restrict themselves to upholding professional standards in the workplace, they now seem intent on collapsing entirely the distinction between occupational and private life.
In Canada alone, for instance, the Law Society of Ontario has been pushing for a mandatory diversity pledge for all lawyers, while the province of British Columbia recently passed a law that can result in doctors being jailed for up to two years if they are found to have spread certain types of “false or misleading information”, e.g. saying that face masks don’t prevent transmission of Covid-19.
Here in the UK, the FSU has also had a glut of recent cases in which employees from a wide range of occupational backgrounds have got into trouble with their professional associations simply for expressing their entirely lawful beliefs outside the workplace.
Social worker and FSU member Rachel Meade was recently sanctioned by Social Work England (SWE), the regulatory body for social workers, for Facebook posts on her private account that criticised some aspects of the transgender rights movement. SWE found Rachel Meade’s “fitness to practice was impaired by way of misconduct”, and argued that her actions had the potential to undermine public confidence in social workers even though there was no evidence her work had been affected (Mail, Times).
Barrister Sarah Phillimore was investigated by the Bar Standards Board over a period of two years over complaints that she had caused ‘offence’ by tweeting about her gender critical beliefs – thanks, in part, to our help those allegations have now been dismissed.
Then there’s James Esses, a former barrister who we’ve helped in the past. James recently won the right to sue the UK Council for Psychotherapy for discrimination over allegations the regulator instructed the Metanoia Institute in London, where he was studying, to have him thrown off his Masters course in psychotherapy for expressing gender critical views (Mail).
The FSU is campaigning for an amendment to the Employment Rights Act 1996 to make it impossible for companies to discipline staff for saying non-woke things outside of the workplace. Increasingly we’re finding that it isn’t HR departments per se, but external professional bodies and regulators that give the policing of this out-of-office behaviour the momentum that it otherwise might not have.
Regional Speakeasies – book your tickets here!
Having held very lively regional Speakeasies in Cardiff, Manchester and Edinburgh, the FSU continues its ‘national tour’ in February, with events in Oxford (7th February), Cambridge (8th February), Birmingham (15th February) and Brighton (20th February).
Come along to hear FSU staff members Ben Jones (Oxford), Karolien Celie (Cambridge), Tom Harris (Birmingham) and me (Brighton) discuss why free speech is worth fighting for. The Regional Speakeasies are a great opportunity to hear how our work is developing across many different fronts, including case work, research, campaigning and lobbying. In addition, there’ll be plenty of time for discussion, as well as socialising with fellow free speech supporters. Do come along to one and bring curious friends and colleagues, not forgetting to book your places via our Events page, which you can find here.
Speakeasy with Meghan Murphy
Our next members-only Online Speakeasy is ‘Defeating Twitter Bans and Defending Free Speech’, featuring me in conversation with Meghan Murphy. Join us on Zoom at 7.30pm on Wednesday 8th March for this online Speakeasy with Canadian journalist, writer and podcaster Meghan Murphy.
If you’re an FSU member, you can find the link to register for this event in last Friday’s newsletter and it will be emailed again in coming weeks. If you are not yet a member, please consider joining the FSU to secure a place at exclusive events such as this.
Meghan is the founder and editor of a feminist website and the host of YouTube channel The Same Drugs. She has spoken up about the issue of gender identity legislation and women’s rights, including in the Canadian senate and the Scottish Parliament, and has had to endure repeated threats of death, rape, violence and censorship (Telegraph). On the topic of censorship, Meghan was permanently banned from Twitter in 2018 for saying that men are not women. Thankfully, the ban was lifted by Twitter’s new owner and CEO, Elon Musk in November 2022.
The focus of her work for many years was on cultural analysis from a feminist and socialist perspective, though in a recent interview with Spiked she admitted that one of the things she gained from being banned from Twitter was “connecting with people who had been advocating for free speech for a long time” and she has since switched her focus to the fight for free speech. “You would hope people would understand why censorship and controlling speech for political purposes are dangerous,” she says, “but so many people don’t seem to get it.”
You can find Meghan on Twitter here and Substack here. To whet your appetite for the FSU’s Speakeasy, you can listen to Meghan’s appearance on The Joe Rogan Experience here and her Triggernometry podcast appearance here.
Oxford Union debate on woke culture
I participated in a debate at the Oxford Union, arguing for the motion: “This House believes woke culture has gone too far.” In spite of the members of the Union all being students, my side won by 60 votes, which was very gratifying.
You may have already seen the excellent speech in favour of the motion by Konstantin Kisin, the co-host of Triggernometry and author of An Immigrant’s Love Letter to the West. It went viral on Twitter, being watched by over 20 million people, and he subsequently appeared on Fox News to talk about it.
My speech wasn’t quite the barnstormer that Konstantin’s was, but it’s worth a watch nevertheless. You can find it on YouTube here.
FSU member Karen Sunderland falls victim to ‘offence archaeology’
Karen Sunderland is suing her former employer after falling victim to ‘offence archaeology’. In 2018, when Karen was a Conservative candidate in the local elections, iNews dug up some tweets she’d posted in 2017 and managed to get her suspended by the party. The tweets reflected her sincere belief that aspects of Islamic doctrine are illiberal and unfair to women.
Four years later, when Karen was embarking on a new career, someone tipped off her employer about this episode and she was fired. Karen believes her comments were protected political speech, and that her dismissal was unfair and discriminatory. Her claim makes two important legal arguments.
First, her dismissal was either directly or indirectly because of her belief in conservatism, a belief protected by the Equality Act 2010. Establishing that conservatism is a protected belief would bring balance to the law: while there is case law protecting left-wing democratic socialism there are no equivalent protections for its right-wing counterpart. If she succeeds in winning this argument, the judgement would protect employees with conservative views which, while wholly lawful, are distasteful to HR officers.
Second, Karen argues that she was dismissed because of her belief in freedom of speech. In short, free-thinkers attract controversy, and always have – and employers who put rigid speech codes in place are disproportionately affecting those who believe in free speech. A finding that freedom of speech is a protected belief would give legal protection to other employees who manifest that belief by speaking their minds and testing received wisdom.
Karen’s trial begins on 28 March 2023. She is being represented by barrister Francis Hoar, acting on a direct access basis. Francis is one of England’s best barristers when it comes to freedom of speech cases and party-political matters: in 2021 he published In Protection of Freedom of Speech, with a Foreword by Lord Sumption.
The Free Speech Union will be launching a crowd-funder imminently to raise funds for this case.
Our case team has been inundated since the start of the university term, with universities making up 20% of our case work. Higher education institutions continue to impose a gamut of free speech restrictions on staff and students, from lists of proscribed words to compulsory equality and unconscious bias ‘training’. The liturgy of EDI continues to be zealously imposed, like a new Book of Common Prayer, and we’ve got our work cut out helping the dissenters keep their jobs, university places and livelihoods.
In the last year we’ve noticed a big increase in the number of people contacting us who work in the public sector, particularly hospitals, the civil service and schools, usually to complain about their employers’ efforts to ‘woke-ify’ their workplaces. Whether it’s indoctrination masquerading as training, ludicrous pronoun policies or punishment of heretical thought, we’d encourage people to push back however they can – in reasonable, professional terms. We’ve now accumulated a lot of experience in these areas and often secure successful outcomes for our members in the public sector. So if you’re concerned about something, you can contact our case team in complete confidence for some advice, an informal discussion and some pointers. Just email [email protected].
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P.S. Don’t forget to sign our petition urging the CEO of ITV not to cancel Jeremy Clarkson. It’s already got over 60,000 signatures.