Is the battle for freedom lost?

On the 8 October this year, 20-year-old Matthew Woods was sentenced to three months in prison for making “grossly offensive comments” on his Facebook page about missing girls April Jones and Madeline McCann.

In March, Swansea student Liam Stacey was given just under two months custody after posting several racist and inflammatory tweets about Fabrice Muamba, as well as the arrest of a young man who taunted Olympian Tom Daly about the death of his father. Whatever you think on these arrests and the length of the sentences, should the right of free speech have protected them completely?

“Freedom” is a very evocative word, both emotionally and politically. You would be hard pressed to find someone who didn’t think that people should be free and autonomous – free to live, free to think, free to believe, free to speak.

However, ask the same people a different question and you may find that they don’t think people should be free after all – free to keep ludicrous expenses claims private, free to hire a woman over a man because she’s attractive, free to insult or offend or disgust. Freedom is not a simple dichotomy: it is not black and white.

What is clear is that, as good as fundamental human rights sound, it would be disingenuous to think that they could all be enforced without any kind of balancing act. The right to privacy often causes clashes when the press invoke the right to free speech.

Think back to the MP expenses “scandal”, or to Max Mosley and his Nazi orgy. In both cases, damaging private information about individuals was published in the media. The question on which both cases seemed to hinge, however, was if there was an element of public interest in the release of that information. It was held that, unlike with MPs expenses, there was no real “public interest” in Max Mosley’s private sex life, and he was awarded £60,000 in damages.

How does this balancing act translate onto tweets, emails, posts and prose? In the UK, the right to freedom of expression is governed by article 10 of the European Convention on Human Rights (ECHR), which grants “the freedom to hold opinions and to impart information and ideas without interference by public authority”.

However, the necessary balancing act is also present in the Article, which gives accepted exceptions to this right, among them national security, the prevention of crime, and the protection of health or morals.

These exceptions are broadly given so as to effectively restrict that speech which Europeans may consider dangerous or hurtful. From this definition of freedom of expression, it seems clear that the law was justified when it took action against Matthew Woods and Liam Stacey. But was the action it took itself justified?

While Woods was pleading guilty in court, the director of public prosecutions, Keir Starmer QC, was meeting with journalists discussing whether people like Woods should face charges in the first place.

He made it clear that, while the crown prosecution service (CPS) cannot themselves grant immunities, they also do not have the ability to prosecute every person who sends an offensive communication. What mattered, he explained, was whether the message was so “grossly” offensive as to warrant criminal proceedings.

It is not the job of the criminal law to protect the public from mere bad taste or controversy. In fact, in September the CPS declined to prosecute semi-professional footballer Daniel Thomas for a homophobic tweet he made regarding diving partners Tom Daly and Peter Waterfield.

Reasons included Thomas’ intention to be humorous; that he did not intend it to go beyond his friends and family; and that he took quick action to remove the message. Reading this, it is hard to understand why Woods was prosecuted, as the circumstances in which his message was made seem to be similar and if, as Starmer QC implies, it is irrelevant that the message was simply more distasteful. However, by pleading guilty Woods never got the opportunity to test this in court.

Outside of the EU, the picture changes. There are serious breaches of the right to freedom of expression in countries where political discourse is not so actively encouraged.

This came to a political head in March this year when three members of the Russian “feminist punk-rock collective” Pussy Riot were arrested and charged with hooliganism after staging an anti-Putin performance in Moscow’s Cathedral of Christ the Saviour.

All three were convicted and two have since been sent to forced labour camps. Although domestically little interest was generated, there was international outcry. Most of this was due to the way the women had been treated and concerns about the legitimacy of their trial. The US, however, did express concern and asked Russia to “review this case and to ensure that the right to freedom of expression is upheld.”

In essence, free speech is the lesser of two evils. The ECHR was drawn up in Europe after the second world war to go some way towards ensuring that never again would such a politically oppressive and destructive regime like the Nazis suppress and control a nation as they did.

It would seem, then, that in the minds of those that drew up the convention, the right to freedom of expression was intended to be for political purposes: to allow people to criticise governments and their politics; to benefit the general public. It is not here to give people carte blanche to offend whomever they want, whenever they want.

Salman Rushdie said of the freedom of expression that “Without the freedom to offend, it ceases to exist.” This writer must respectfully disagree. A high threshold must be set for speech to be protected as a fundamental human right, and mere criticism and insults does not cross that threshold.

However, merely offensive posts such as those of Matthew Woods or Daniel Thomas should warrant action from the criminal law. While they are not valuable enough to be protected as a human right, they do not fall below the criminal standard.

While the law in this area is sufficient and correct, the whim and outrage of the general public has far too much influence on the CPS. When the tabloid media gets scent of an “outrage”, it would be too politically damaging for the CPS not to press charges, and this is wrong. We, the public, are almost the greater danger to human rights.


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Joel Taylor

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August 2022
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