Carrington Calder, Associate Member, Immigration and Human Rights Law Review
I. Introduction
In 1948, the United Nations (U.N.) set forth the Universal Declaration of Human Rights (UDHR) to establish a standard of human rights that would not be limited by a country’s borders.[1] Although this declaration is not binding, it serves a guiding purpose for its member states by setting the foundation for human rights law.[2] Article 19 of the UDHR states that “[e]veryone has the right to freedom of opinion and expression,” including the freedom to disseminate and receive information.[3] While the U.N. sought to make the freedom of opinion and expression a global norm, “[e]ven widely accepted human rights are sometimes denied or repudiated in practice.”[4]
Freedom of expression is a topic of intense discussion in the United Kingdom at present due to its role in the recent civil unrest and immigration protests.[5] A recent press release by the U.N. has ignored the United Kingdom’s already severe free expression restrictions.[6] This blog recommends that the U.N. hold the United Kingdom to a standard that is true to recognized exceptions to freedom of expression of U.N. law and Article 19 of the UDHR.[7] Part II of this blog will provide background on the civil unrest in and the applicable law. Part III will examine the laws of the United Kingdom as compared to recognized exceptions of freedom of expression in the U.N. Part IV will conclude by recommending a future course of policy.
II. Background
A. Mass Stabbing Attack and Misinformation
On July 29, 2024, a mass stabbing attack killed three children in the town of Southport in the United Kingdom.[8] The aftermath has marked a peak in rising anti-immigration sentiment, which in turn, has led to widespread protests and civil unrest.[9] The tragic violence was not alone in igniting the unrest. What escalated the upheaval was a false news story spread on social media that blamed a convenient target for the murders: an immigrant.[10] Although the false news story’s source has been disputed, it was claimed that the original creator was Farhan Asif,[11] a man living in Pakistan seeking to gain revenue through “clickbait” on his sensationalist news account.[12] “Clickbait” refers to a strategy of using a deceptive or sensationalist headline to grab a reader’s attention and generate clicks or ad revenue.[13] Pakistan authorities arrested Asif on cyberterrorism charges, but Asif claimed that he had merely reposted the information from another source.[14] He was acquitted upon finding that he had not committed any illegal activity.[15] The Pakistan district court magistrate reasoned that reposting misleading information is not a crime.[16]
B. The United Kingdom’s Obligations Toward the United Nations
The United Kingdom is one of the U.N.’s founding members who joined in 1945.[17] Like all members, they are to fulfill the obligations of their membership “in good faith”.[18] Article 19 of the UDHR contains no limits of free speech in the text itself.[19] However, in practice, free speech laws in European countries are much more limited than other nations such as the United States.[20] Protected speech in the United States, such as hate speech, is commonly criminalized by U.N. member states.[21] For example, rhetoric such as Holocaust denial, which the U.N. specifically states “may not be subjected to a general prohibition,”[22] is criminalized in U.N. member countries such as Germany.[23]
III. Discussion
A. United Nations Policies on Freedom of Expression
The civil unrest in the United Kingdom has put the human right to freedom of expression on the forefront of discussion.[24] The Committee on the Elimination of Racial Discrimination (CERD) published a statement regarding the situation urging the United Kingdom “to implement comprehensive measures to curb racist hate speech and xenophobic rhetoric, including from political and public figures.”[25] CERD is a U.N. body of independent experts that monitors the enforcement of the elimination of all forms of racial discrimination.[26] The United Kingdom has been a CERD member since 1969.[27] The CERD Convention requires members to report any actions made to prevent all forms of racial discrimination in order to ensure compliance with its standards.[28] While racist rhetoric can rightfully be denounced, comments such as this miss the heart of the issue and gloss over current freedom of expression problems in the United Kingdom.[29]
For expression to be denied protection under Article 19, it must meet the criteria of legality, necessity, proportionality, and legitimacy.[30] Any restriction must be subject to narrow conditions such that any restriction on free expression may not “put in jeopardy the right itself.”[31] This has been further refined in that any restriction must be “justified in the light of the interest supported by the intrusion.”[32] The U.N. has also released a memorandum about false information and hate speech, stating that policing the expression of opinions about historical facts is inconsistent with Article 19.[33] The memorandum also states that a person who is not advocating incitement, but rather an offensive interpretation of a historical event, “is not to be silenced” under any provision of human rights law.[34]
Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), is also applicable.[35] Article 20(2) requires member states to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”[36] The ICCPR builds on the rights established in the UDHR and the United Kingdom is a signatory.[37] As an ICCPR signatory, the United Kingdom is obligated to preserve basic human rights such as freedom of expression.[38] The ICCPR functions to compel governments to take administrative, judicial, and legislative measures to protect human rights.[39]
For speech to be categorized as incitement it must create “an imminent risk of discrimination, hostility or violence.”[40] To avoid vagueness, hostility is further clarified as “a manifestation of hatred beyond a mere state of mind.”[41] Both CERD and the ICCPR adhere to a test that requires hate speech bans to be in definite terms and “reflect the least intrusive means to further legitimate public interest objectives.”[42] Examples of impressible vagueness range from laws banning “exciting racial hostility” to “fanaticism.”[43]
B. Free Speech Statutes in the United Kingdom
In contrast to the U.N.’s standard for free expression, the United Kingdom’s present laws demonstrate a much more limited interpretation.[44] The United Kingdom’s Communications Act of 2003 (Act) criminalizes sending electronic messages of a “grossly offensive or of an indecent, obscene or menacing character.”[45] The Act also criminalizes sending messages that the person knows to be false for the purpose of “causing annoyance, inconvenience or needless anxiety to another.”[46] This law has been used extensively—with as many as nine arrests a day in 2017.[47] Examples of “grossly offensive” violations span from private WhatsApp messages to a man drawing penises on Snapchat or a dog giving a Nazi salute.[48]
This law fails to detail with particularity what constitutes an offense, therefore risks arbitrary enforcement.[49] Although the examples may seem to represent speech that is not politically necessary or beneficial to a democratic society, making such a distinction of what is and is not worthy of protection is likely to result in speech that is anti-establishment being chilled.[50]
Speech from academics and journalists have also been targeted under the U.K’s hate speech laws.[51] Jewish professor Haim Bresheeth was arrested after giving a speech that was considered pro-Palestine, officers informing him that he was being detained for “making hate speech.”[52] A journalist who covers the Palenstine conflict also had his home raided by police.[53] Examples such as these fail to demonstrate “an imminent risk of discrimination, hostility or violence” as required for the speech to be restricted.[54] Speech that is critical of governance is not deserving of less protection under U.N. standards.[55] The ICCPR specifically states of Article 19 that the “harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of Article 19.”[56] Silencing academics and journalists leaves the danger for future political dissent to be quashed.[57]
The Communications Act of 2003 is not the only aggressive online speech regulation in the United Kingdom. The Online Safety Act (OSA) takes aim at social media companies, criminalizing speech such as sending false information and levying heavy penalties on platforms that leave up violative content.[58] These penalties consist of fines of up to “£18 million or 10 percent of their qualifying worldwide revenue, whichever is greater,” and allow for criminal prosecution against the companies and their senior managers for failure to abide.[59] This poses the danger of fearful social media companies, who in the face such harsh punishment, opt for a preventive approach such as censoring any speech that could potentially be problematic.[60] This could lead to an environment where permissible speech is chilled.[61]
These statutes are vague and fail to satisfy the proportionality test required for free speech restriction.[62] As such, they are incongruous with the United Nations’ standards. However, the European Convention for the Protection of Human Rights greatly reduces the burden of governments to limit speech.[63] Under this convention speech can be limited “for the protection of health or morals” and “for the protection of the reputation or rights of others.”[64] The European Convention for the Protection of Human Rights entered into force in 1953, and the United Kingdom is a member.[65] This regional avenue provides an out for European countries to instill more restrictions than are permissible under Article 19.[66]
IV. Conclusion
The U.N. should not ignore the United Kingdom’s disregard for free expression protections and allow them to skirt obligations under U.N treaties.[67] As a CERD member, the United Kingdom is required to take steps to stop racial discrimination.[68] However, U.K. domestic laws have overstepped the U.N.’s requirements for free speech policies.[69] Without the regulation being proportional to the harm it seeks to prevent the United Kingdom has overstepped the bounds of Article 19.[70] By failing to set an example with the recent comments from CERD, the U.N. has encouraged member states to skirt their commitments by pointing to regional conventions.[71] As a result, allowing for a pick and choose mentality of adhering to human rights requirements.[72]
This policy creates the future danger of political minorities being denied their human right to freedom of expression. The laws and practices of the United Kingdom fail to comply with the U.N.’s prerogatives of free speech, and as such should be deemed worthy of condemnation by the U.N.[73]
[1] G.A. Res. 217 A, Article 19, United Nations, Dec. 10, 1948, https://www.un.org/en/about-us/universal-declaration-of-human-rights [https://perma.cc/QE8X-MDX9] (last visited Sept. 29, 2024).
[2] Christian Tomuschat, Protection of Human Rights under Universal International Law, U. N. Chronicle (Dec. 2016), https://www.un.org/en/chronicle/article/protection-human-rights-under-universal-international-law [https://perma.cc/HJQ9-4DQ4].
[3] G.A. Res. 217 A, supra note 1.
[4] Lee C. Bollinger & Agnes Callamard, Regardless of Frontiers: Global Freedom of Expression in a Troubled World 41 (Columbia University Press 2021).
[5] Sarah McLaughlin, UK government issues warning: ‘Think before you post’, The Fire (Aug. 9, 2024)
https://www.thefire.org/news/uk-government-issues-warning-think-you-post [https://perma.cc/FN6T-ZZG7].
[6] Ben Quinn, UK placed in third tier in global index of free expression, The Guardian (Jan. 24, 2023, 19:01 EST), https://www.theguardian.com/politics/2023/jan/25/uk-placed-in-third-tier-in-global-index-of-free-expression [https://perma.cc/SZ5D-K5MP]; Committee on the Elimination of Racial Discrimination, UN Committee on the Elimination of Racial Discrimination publishes findings on Belarus, Bosnia and Herzegovina, Iran, Iraq, Pakistan, United Kingdom, and Venezuela, U.N. Doc. CERD/C/113/2 (113th Sess., 2024).
[7] G.A. Res. 217 A, supra note 1.
[8] Lynsey Chutel & Megan Specia, Southport Stabbing: What We Know About the UK Knife Attack and a Later Riot, N.Y. Times (July 31, 2024), https://www.nytimes.com/2024/07/30/world/europe/southport-stabbing-uk-suspect.html [https://perma.cc/RGM7-84ZE].
[9] Why are there riots in the UK?, BBC (Aug. 9, 2024), https://www.bbc.com/news/articles/ckg55we5n3xo [https://perma.cc/N57D-REE3].
[10] Salman Masood, Pakistan Arrests Man Over Disinformation That Helped Spur U.K. Riots, N.Y. Times (Aug. 21, 2024, 22:06 EST), https://www.nytimes.com/2024/08/21/world/asia/pakistan-arrest-southport-riots.html [https://perma.cc/Z9EF-QDC4].
[11] Pakistan court acquits man over spreading disinformation that led to riots across UK, Deccan Herald (Aug. 26, 2024, 16:08 IST), https://www.deccanherald.com/world/pakistan-court-acquits-man-over-spreading-disinformation-that-led-to-riots-across-uk-3165118 [https://perma.cc/UE8P-KD72].
[12] Masood, supra note 10.
[13] Clickbait Definition, Merriam-Webster, https://www.merriam-webster.com/dictionary/clickbait [https://perma.cc/C53F-WXPM].
[14] Pakistan court acquits man over spreading disinformation that led to riots across UK, Deccan Herald (Aug. 26, 2024, 16:08 IST), https://www.deccanherald.com/world/pakistan-court-acquits-man-over-spreading-disinformation-that-led-to-riots-across-uk-3165118 [https://perma.cc/UE8P-KD72].
[15] Mubasher Bukhari, Asif Shahzad, & William Maclean, Pakistani court acquits man charged with cybercrime linked to British riots, Reuters (Aug. 26, 2024, 11:10 AM), https://www.reuters.com/world/asia-pacific/pakistan-court-acquits-man-charged-with-cybercrime-linked-british-riots-2024-08-26/ [https://perma.cc/Y698-8AWC].
[16] Syed Barkat Mujtaba, Court Acquits Web Developer for Want of Evidence, The Nation (Aug. 27, 2024), https://www.nation.com.pk/27-Aug-2024/court-acquits-web-developer-for-want-of-evidence [https://perma.cc/THK5-SD7E].
[17] UN Membership, U.N., https://research.un.org/en/unmembers/founders [https://perma.cc/T9AP-Q422] (last visited Sept. 29, 2024).
[18] U.N. Charter art. 2, ¶ 2.
[19] G.A. Res. 217 A, supra note 1.
[20] Comparing Hate Speech Law in the U.S. and Abroad, Nat’l Pub. Radio (Mar. 3, 2011, 3:00 pm), https://www.npr.org/2011/03/03/134239713/France-Isnt-The-Only-Country-To-Prohibit-Hate-Speech [https://perma.cc/C2YJ-MGC2].
[21] Id.
[22] David Kaye (Special Rapporteur on the Promotion and protection of the right to freedom of opinion and expression), Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc A/74/486 (Oct. 9, 2019).
[23] Dan Glaun, Germany’s Laws on Hate Speech, Nazi Propaganda & Holocaust Denial: An Explainer, Frontline (July 1, 2021), https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/ [https://perma.cc/GZ7N-SHUB]; However, the UN has passed a resolution condemning the practice of Holocaust denial, the difference lies between condemnation and criminalization. G.A. Res. 76/250, Holocaust Denial (Jan. 20, 2022).
[24] Lynsey Chutel & Megan Specia, supra note 8.
[25] Press Release, UN Committee on the Elimination of Racial Discrimination, UN Committee on the Elimination of Racial Discrimination publishes findings on Belarus, Bosnia and Herzegovina, Iran, Iraq, Pakistan, United Kingdom, and Venezuela, U.N. (Aug. 23, 2024) https://www.ohchr.org/en/press-releases/2024/08/un-committee-elimination-racial-discrimination-publishes-findings-belarus [https://perma.cc/K9J3-ZLSH].
[26] Committee on the Elimination of Racial Discrimination, U.N., https://www.ohchr.org/en/treaty-bodies/cerd [https://perma.cc/H865-W49L] (last visited Sept. 29, 2024).
[27] International Convention on the Elimination of All Forms of Racial Discrimination, U.N., (Mar. 7, 1969), https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights [https://perma.cc/2RJT-4RXN].
[28]Racial Discrimination Reporting Guidelines, U.N., https://www.ohchr.org/en/treaty-bodies/cerd/reporting-guidelines [https://perma.cc/Q3AY-DB7S] (last visited Sept. 30, 2024).
[29] Id.
[30] U.N. Secretary-General, Promotion and protection of the right to freedom of opinion and expression, 5-6, ¶6 U.N. Doc A/67/357 (Sept. 7, 2012).
[31] Id.
[32] David Kaye, (Special Rapporteur on the Right to Freedom of Opinion and Expression) & Ahmed Shaheed (Special Rapporteur on freedom of religion or belief), Letter dated May 9, 2017 from Special Rapporteurs to Theodore Allegra, U.N. Doc. OL USA 6/2017 (May 9, 2017).
[33] Kaye, supra note 22.
[34] Id. at 6.
[35] Background to the International Covenant on Civil and Political Rights and Optional Protocols, U.N. Hum. Rts. Committee, https://www.ohchr.org/en/treaty-bodies/ccpr/background-international-covenant-civil-and-political-rights-and-optional-protocols#:~:text=The%20ICCPR%20aims%20to%20ensure,Right%20to%20life [https://perma.cc/VX8V-Q3T8] (last visited Sept. 29, 2024).
[36] Id.
[37]Id.; Monitoring and Promoting UN Treaties, Equality & Hum. Rts. Commission, https://www.equalityhumanrights.com/our-work/our-human-rights-work/monitoring-and-promoting-un-treaties [https://perma.cc/F6DD-K3KG] (last visited Sept. 29, 2024).
[38] Id.
[39] FAQ: The Covenant on Civil & Political Rights (ICCPR), ACLU (July 11, 2013), https://www.aclu.org/documents/faq-covenant-civil-political-rights-iccpr#:~:text=The%20ICCPR%20obligates%20countries%20that,treatment%2C%20and%20arbitrary%20detention%3B%20gender [https://perma.cc/8B7E-TAT2].
[40] Kaye, supra note 22.
[41] Id. at 13.
[42] Evelyn Aswad & David Kaye, Convergence & Conflict: Reflections on Global and Regional Human Rights Standards on Hate Speech, 20 Nw. J. Hum. Rts. 165, 168 (2022).
[43] H.R.C. Rep of the Promotion and protection of the right to freedom of opinion and expression, Seventy-Fourth Session (Oct. 9, 2019) at 10, https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/A_74_486.pdf [https://perma.cc/WE47-CV2N].
[44] Communications Act 2003, c.21 (Eng.), https://www.legislation.gov.uk/ukpga/2003/21/section/127 [https://perma.cc/6CR4-3TRC].
[45] Id.
[46] Id.
[47] Charlie Parker, Police Arresting Nine People a Day in Fight Against Web Trolls, The Times (Oct. 12, 2017, 12:01 BST), https://www.thetimes.com/uk/crime/article/police-arresting-nine-people-a-day-in-fight-against-web-trolls-b8nkpgp2d [https://perma.cc/HDC7-24Z3].
[48] Builder Ordered to Pay Policeman £400 After Drawing Two Penises on a Picture of Him and Posting it on Facebook, Daily Mail Reporter (Feb. 6, 2014, 1:36 EDT), https://www.dailymail.co.uk/news/article-2552269/Builder-ordered-pay-policeman-400-drawing-two-penises-picture-posting-Facebook.html [https://perma.cc/K7WW-Z9Z5]; Ellie Forbes and David Meikle, Man who trained girlfriend’s pet pug to give Nazi salutes on ‘Sieg Heil’ command is convicted of posting offensive message online, Mirror (Mar. 21, 2018, 08:45), https://www.mirror.co.uk/news/uk-news/man-convicted-dog-nazi-salute-12220187 [https://perma.cc/4RJ2-EN4V]; Thomas Kingsley, Wayne Couzens’ Met Police colleagues sentenced over ‘sickening’ WhatsApp messages, Independent (Nov. 2, 2022, 17:08 GMT), https://www.independent.co.uk/news/uk/crime/wayne-couzens-colleagues-whatsapp-group-b2214739.html [https://perma.cc/RDD7-BETE].
[49] Id.
[50] Id.
[51] UK Counterterrorism Police Raid Home of Electronic Intifada Journalist Asa Winstanley, Middle East Eye (Oct. 18, 2024, 12:35 BST), https://www.middleeasteye.net/news/uk-counterterrorism-police-raid-home-electronic-intifada-journalist-asa-winstanley [https://perma.cc/27WG-88MU].
[52] UK Police Arrest Israeli Academic Haim Bresheeth After Pro-Palestine Speech, Middle East Eye (Nov. 4, 2024, 13:53 GMT), https://www.middleeasteye.net/news/uk-police-arrest-israeli-academic-haim-bresheeth-speech-pro-palestine-demonstration [https://perma.cc/62N4-X8PS ].
[53] UK Counterterrorism Police Raid Home of Electronic Intifada Journalist Asa Winstanley, Middle East Eye (Oct. 18, 2024, 12:35 BST), https://www.middleeasteye.net/news/uk-counterterrorism-police-raid-home-electronic-intifada-journalist-asa-winstanley [https://perma.cc/27WG-88MU].
[54] Kaye, supra note 22.
[55] Id.
[56] H.R.C., General Comment No. 34, Article 19: Freedoms of opinion and expression, U.N. 102nd Sess., adopted 12 Sept. 2011, U.N. Doc CCPR/C/GC/34, available at https://documents.un.org/doc/undoc/gen/g11/453/31/pdf/g1145331.pdf [https://perma.cc/3MKL-K4TT].
[57] Id.
[58] Online Safety Act: Explainer, U.K. Dept. for Sci., Innovation, & Tech. (May 8, 2024), https://www.gov.uk/government/publications/online-safety-act-explainer/online-safety-act-explainer [https://perma.cc/22ZP-UBDE].
[59] Id.
[60] Id.
[61] Chilled speech means that individuals will refrain from expressing themselves in certain ways for fear of repercussions.
[62] Kaye, supra note 22.
[63] Aswad & Kaye, supra note 42.
[64]Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950 213 U.N.T.S. 221.
[65] What is the European Convention in Human Rights, Equal. & Hum. Rts. Comm’n (Apr. 19, 2017)
https://www.equalityhumanrights.com/human-rights/what-are-human-rights/what-european-convention-human-rights [https://perma.cc/GL4Z-UG5P].
[66] Aswad & Kaye, supra note 42.
[67] Committee on the Elimination of Racial Discrimination, supra note 6.
[68] Id.
[69] Kaye, supra note 22.
[70] G.A. Res. 217 A, supra note 1.
[71] Aswad & Kaye, supra note 42.
[72] Id.
[73] G.A. Res. 217 A, supra note 1.
