Right to Freedom of Expression - Essay Example

Right to freedom of expression Name Institution Date Right to freedom of speech, its scope and limitations. Human rights are rights that have been guaranteed by law and are inherent to all human beings regardless of their residence, nationality, sex, religion or any other status. This means that, every human being is entitled to them without being discriminated against. These rights have been expressed in the customary law, national laws, in form of treaties, general principles, in the international laws among other sources of law.1 Governments are obligated under the international laws to protect and promote the basic human rights and freedoms of their citizens. It is important to note that, human rights have similar characteristics globally. Some of the characteristics include; they promote fairness, respect, equality and dignity 2 Human rights were created to ensure that, all human beings are treated in the same manner regardless of their status in the society. They are therefore more important and useful to the individuals that are less powerful or most vulnerable in the society. Some of the universal human rights include; right to life, security and liberty, freedom from slavery, freedom of movement, right to a fair hearing, the right to privacy, own a home and a family, right to freedom of expression among others3 The law has come to intervene on the emerging forms of communication in social media where the freedom of speech is increasingly abused. People have got into legal trouble for posting or commenting something on social media. Lack of care in posting loud and provocative messages online has begot the question of abuse to freedom of speech. The law is mandated to protect the people involved and the negative effects to reputations through spread of hatred speech4. In actual sense there is growing concern that most people using social media are not aware or fail to understand the authoritative aspect that surround the things they should or should not say online 5. Most users are young people who have no idea that there are legal consequences of their online postings. The social media is purposed to share ideas however, this may become revoltingly if offensive messages are being posted as indicated by the director of public prosecutions6. This paper aims at expounding on the scope of the right to freedom of expression in the United Kingdom (UK). Case studies of recent court rulings are going to be discussed in details so as to elaborate on the limitations of the freedom to express or free speech. The scope of freedom of expression In the United Kingdom, human rights are protected at three main levels; the domestic, regional and international levels. The human rights act under the domestic level has placed a primary duty to all public authorities of respecting the human rights that it contains in all their undertakings. The Human Rights Act has two main objectives. The first one being, to ensure that the human rights that have been stated in the European Convention on Human Rights are brought into the UK law. This ensures that, human rights are easily accessible in a cheaper and a quicker way. In addition, an appeal can be presented to the European courts of human rights in situations where a case was not successful in the UK courts7 . The second objective of the Act is to develop a culture where human rights are respected in the UK. At the regional level, the UK in 1951 joined the European Convention on Human Rights. The convention was developed by the council of Europe so as to create, defend and safeguard human rights across its 47 member states. At the International law level, the UK has entered into various international human rights treaties that are under the watch of the United Nations. Some of the human rights and freedoms contained in the Human Rights Act include; the right to life, the right to fair trial, the right to no punishment without law, the right to freedom of expression, freedom of thought, conscience and religion among others 8 . .In the United Kingdom, the right to freedom of expression is contained in Article 10 of the European Convention on Human Rights (ECHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). According to both Articles, an individual has a legal right to receive and issue information. Article 19(2) clarifies that, the right includes the freedom to receive or issue ideas and information of all kinds regardless of the frontier9. It is not disputed that the right to freedom of expression is a fundamental right since it has been upheld at the three levels, that is, at the domestic, national and international level. It is important to note that, other courts and bodies around the world have affirmed this. For instance, Article 9 of the African Convention states that, the freedom of expression is a fundamental basic human right that is crucial in enhancing personal development, their political awareness and their involvement in conducting their country’s public affairs10 . This means that, the freedom is essential in ensuring democracy since the public is allowed to engage in debates that are political in nature11. In addition, it ensures that there is transparency in government and leadership. According to Article 10 of the ECHR, individuals are also allowed to hold opinions as well as receive and communicate ideas without the interference of the state. Instead, a state is required to put in place measures that will ensure that, its actions do not hinder the society from receiving information freely. Such measures may include, issuing of licenses to broadcasters and media houses12. The state has a primary obligation as required by the human rights act to ensure that private actors do not hinder others from expressing themselves freely. For instance, a newspaper should be protected against attacks from others. By putting such measures in place, the state will have fulfilled a primary obligation that has been bestowed on it by the Human Rights Act. The right is protected without any discrimination based on an individual’s colour, race, religion, sex or other status13. In the same wave length, freedom of expression applies to any kind of idea or information. This is to mean that, an individual is allowed to make statements on ideas that are factually incorrect and even hold opinions that lack merit. As noted by the European Court of Human Rights, it is in appropriate to only allow the expression of only the ideas that are generally acceptable. Moreover, it would be unreasonable to declare a statement void based on its merit. Limitations/Restrictions of the freedom of expression However, it is important to note that, the right to freedom of expression is not an absolute right. This means that, exceptions, formalities and conditions of this right have been provided for by Article 10 of the European Convention on Human Rights. It states that, the freedom to express should be exercise without compromising on the states security, public safety and territorial integrity14. In order to achieve this, the UK government has put measure in place to ensure that the undertakings of the Security and Intelligence Services (SIS) remain a secret. The government has passed the draconian Official Secrets Act (OSA) that restricts the revealing of specified range of information by both the media and the employees of government. The individuals that breach the OSAs terms are sued and have penalties or imprisonment imposed on them. Restrictions have also been put in place in the issuing of information that has been received under oath or in confidence. It is a criminal offence for any member of the SIS to issue any information even though such information would not harm the national security15. Notably, other offenses may arise as a result of using social media as a form of communication16. Under the Protection from Harassment Act, offensive messages targeting a certain person or a group of people may amount to harassment that is punishable by law. In addition, statements that threaten the reputation and dignity of a group of people can amount to defamation and a legal action can be taken against the issuer of such statements. Moreover, Speech that can cause disorder and result to war and animosity is prohibited by law 17.The law refers to it as hate speech as it leads to discrimination and stigmatization of others based on their gender, race or other group membership18. In Jersild v Denmark, Jersild, a journalist had conducted a radio interview with a group of three individuals going by the name “the greenjackets”. They were to give their views on racism and during the interview; they made derogatory statements about black people. Consequently, the journalist and the interviewees were charged and convicted for the offence of making racists comments. Jersil made an appeal to the East Denmark Court of Appeal after being fined 1000 Danish kroner. It was held that, the racists’ statements that had been made by the individuals are not protected by articles 1019. Therefore freedom of expression should promote cohesion among individuals and ensure that crime is prevented. This was the provision that was used in the ruling in Azhar Ahmed case, after he posted on his facebook page after the death of 6 Afghanistan solders that “all solders should die and go to hell.”Ahmed could have defended himself by letting the court know that he had been remorseful for having made that statement for he had not known that it would cause such a public stir. Therefore, in exercising this freedom, an individual should ensure that, the rights and reputation of other people are not compromised 20 .Where an individual fails to exercise this right as stipulated by the law, penalties may be imposed on them by the court. This calls for responsible use of the freedom of expression. Where an individual has violated the restrictions that have been put in place by law, legal action should be taken against them 21. For instance, In October 2012, Matthew Woods was jailed for 12 weeks as a result of posting despicable comments on his facebook page about a missing five–year old April Jones. The man made these posts after acquiring the idea from a website that “trades in sick jokes” well known as sickipedia. Some of the comments that he made about April were sexually explicit in nature. He also made derogatory comments about the missing Madeleine McCann. The chairman of the bench that passed the judgment said that, the offense was serious since it had communicated fear and stress to the families involved and had caused public outrage as well. According to the law, sending of indecent, threatening, grossly offensive information that might end up causing distress to the public is an offense. The court used this provision in its ruling. The only reason that the jail term was not declared to the maximum was due to the defendants’ early guilty plea. In as much as Woods had posted the statements as jokes, it could have been no defense since he should have been sensitive to the feelings of the families that had been involved in that misfortune. As stated in22, comedians as well as political and social commentators should avoid making statements that are offensive to particular groups of people especially those that are vulnerable. In addition, permission is needed from the individuals that might be affected by the comments or satire. This is to ensure that, comedians are sensitive enough to the vulnerable groups23. Woods could have however defended himself by stating that, however misunderstood he was, he intended the message to be humorous and never intended to cause any anxiety to the family members involved24. In addition, he would take a step of removing the message on the social site so as not to cause further public outrage. Woods could have continued to state that, the message was not intended for the affected families and they had not known about it until the media brought it to their attention 25 However according to the European Court of Human Rights, an individual has a right to express opinions that shock, offend or disturb the state or any sector of the population as long as such a statement is not grossly offensive. 26This precedent was ruled by ECHR in 1976 in Handyside vs. United Kingdom’s case. In 1976, Richard Handyside acquired the publishing rights of “The Little Red Schoolbook” written by Jesper Jensen and Soren Hansen, whose chapter on Pupils had a 26 page section on sex. A magistrates Court issued Handyside two summons for having published the obscene book to the public for gain. This was after the book becoming a subject of extensive favourable and unfavourable press comments. Using the margin of appreciation doctrine, it was held that, Handysides freedom to express had been defined by law and was necessary in a democratic society. He had thus not violated Article 1o of ECHR. Paragraph 49 of the judgment read that freedom of expression is applicable to not only information and ideas that are favourably received as inoffensive but those that shock offend or disturb the state and any population sector. It was this precedent that led to the judge dismissing Daniel Thomas case where he had sent a homophobic message on twitter about Tom Daley and Peter Waterfield. The court ruled that, David had not committed any criminal offense 27. Criteria used to assess legitimacy of the for restrictions It is of importance to note that, any restriction to the freedom of expression must meet a certain criteria for it to be deemed as legitimate. This is to prevent mostly governments from misusing the exemptions by preventing journalists from issuing certain information to the public. The criterion as was observed in the case of Otto-Preminger-Institute vs. Austria28 states that; the first criteria that the exemption must fulfill is that, it has been stipulated by law. This means that, the restriction must have either been passed by parliament as a statute, articulated by judges under the common law, is in the professional rules or is in secondary legislation. However, laws that have been put in place to restrict the freedom to express should not issue administrative or the executive authorities excess power to limit expression29. Secondly, the press and the citizens must be aware of their duties and responsibility in relation to protecting the right to freedom of expression. The law therefore must be clear on what it prohibits and lay out the consequences of not adhering to such a prohibition. The law should clarify on its provisions since vague statements are subject to various interpretations by the authorities that enforce them and the public. This will enable them to be able to identify the disclosures that might be unlawful with certainty30. Notably, a restriction that disallows the media to issue the public with illegality cases and corruption cannot be recognized by law since it denies the people their democratic right. Therefore no punishment should be bestowed on the journalists that whistle blow on such wrongdoings. Moreover, public interest remains paramount even in times when such a disclosure might damage national security, provided the benefits of issuing such information will outweigh the damage caused. Therefore a balance should be stricken between national security and freedom of expression31. Thirdly, the restriction is on an expression rather than an opinion. This is because; Article 19(1) of the ICCPR protects opinions. Individuals are allowed to think the most depraved and evil thoughts as long as they do not express them as this may in some cases lead to sanctions by the court. Lastly, any exemptions to the right of freedom of expression which is based on the protection of the reputation of others must have a purpose that is genuine and should demonstrate that it effectively protects the legitimate interests of such individuals 32. Conclusion From the above discussion, it is clear that, the right to freedom of speech is a fundamental and a legal right to the citizens. An individual is no restricted to acquire or communicate information of any kind. This has enhanced the citizens’ democracy as information is democracy’s oxygen. Therefore, the citizens can freely engage in political debates without the governments’ prohibition. For instance, the judicial review provides that, majorities are elected in a proper manner and that the public can debate the issued comprehensively before casting their votes. If the leaders actions are hidden from the people they rule, such individuals are unable to make meaningful contribution towards the societies affair33. Through the constitutional protection of free speech, the government cannot therefore suppress or prohibit the speech that it does not like. As noted earlier, public interest comes first even when such an expression may lead to the harming of national security. As ruled by the courts, the bill of rights that has makes it plain that, the freedom to free expression enjoys special protection34. However, the right to freedom of expression comes with restrictions. Such restrictions must have been passed by the law in order to ensure that the governments do not misuse them to suppress the communication of information that they dislike. As provided for in the ECHR and ICCPR, the right has some exemptions35. The freedom to express can be limited or restricted if it damages national security, although, revelations of wrongs done by politicians and individuals in authority have been allowed by the courts. In addition, if the speech does not respect the reputation and the rights of others, an individual may be restricted from free expression. Therefore, the right to freedom of expression must be exercised with responsibility Most people will spend most of their time updating their status given the access of internet, which is fun but addictive. Pondering the positives, it may be of assistance to a business due to employees who are keener on social networking as a way of increasing on the productivity of a company. A set a high threshold for prosecution in cases of people posting grossly offensive should be put in place. 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