The human right to freedom of expression is protected in the UK under the Human Rights Act 1998. Section 12 of the Act incorporates Article 10 of the European Convention on Human Rights into national law. Often involved in contentious situations, the scope and reach of this civil right is a much debated subject.
Last week the issue was once again in the spotlight. The Hackney Gazette issued a statement saying that they would no longer be carrying adverts for the far-right British National Party (BNP). The editor said: ‘We have concluded that it is not in the best interests of the community to publish the advertisement in the Hackney Gazette. Nor is it right to give the BNP further publicity through a prolonged public debate about the merits of the organisation and its advertising campaign. The balance of arguments in this debate has been extremely difficult but we believe that we have come to the right conclusion.’
Although the freedom of the press allows papers to decide on their own editorial stance and refuse to publish any material that they deem offensive, the right by all citizens to free expression is one that warrants discussion. Should material that incites racial tension be censored? Or should all material enjoy the rights provided under the 1998 Act and be left open to debate and critique?
Article 10 of the European Convention on Human rights states 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 and regardless of frontiers.’
Section (2) of the Article provides situations where suppression may be acceptable: ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
It is the responsibility of the courts to determine whether the censorship is justified. In the leading freedom of expression case Handyside v United Kingdom an argument in favour of complete freedom of expression was set out: ‘Article 10 is applicable not only to ‘information’ and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also 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’.
The balance of justification is an important issue within the legality of censorship. When freedom of expression is allowed within one country (for example, Denmark and the publishing of the Islamic cartoons) as an illustration of the human right to free speech, in comparison to the jailing of another person in a different country for offending others through their exercising of their right (for example, David Irving – the controversial far-right historian), it is clear that there is an issue of rationalisation in allowing certain types of expression, and not others.
To aid in the understanding of the varying justifications for censorship used throughout the different EU states that follow the Convention, the concept of the ‘margin of appreciation’ was developed. Here, the interpretations of the Convention principles within different states are considered. When a case is heard before the European Court a country may use the margin of appreciation as a defence due to the social and historical differences between different countries. The margin of appreciation has long been established as part of the European Court of Human Rights. However, there remains criticism of the concept due to it being ‘elusive’. Many legal commentators believe that the model ‘illustrates a disappointing lack of clarity’. The principle contention against the theory is that a needless subjective factor is introduced into the interpretation of the provisions of the ECHR.
The censorship of speech will always continue to stir up animated debate both in favour of and against. The law seeks to balance the justification with the needs of society, but it is clear that each case that is brought before the court will need to be treated carefully if there is going to be any clarity within the law on freedom of expression. Charlie Beckett, a journalist from the Polis think-tank, believes that all material should remain free from censorship: ‘As a journalist I believe that you should report reality and not hide from it. As a liberal I am convinced that the best way to counter illiberal views is to treat them on the same terms as you would other political ideologies.’
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This post was written by Chris Bath