The Law Commission recently ran consultations on two law reform projects with implications for freedom of expression: Hate Crime, and Reform of the Communications Offences. English PEN submitted substantial responses to both.
In Hate Crime Laws: A Consultation Paper, the Law Commission made a number of proposals for reform. It recommended that decisions on what ‘protected characteristics’ should be included in hate crime and hate speech laws should be dependent on a ‘demonstrable need’ based on evidence of prevalence. It also recommended that the laws around hate speech, currently found in Part 3 and 3A of the Public Order Act 1986, should be standardised and streamlined. The Commission also recommended that ‘insulting’ words should no longer be included in any criminal definition. In our consultation response, English PEN welcomed these proposals. If hate speech laws continue to be a part of our legal framework, then measures that simplify and narrow the definition of what constitutes hate speech should reduce the ‘chill’ on freedom of expression.
The commission also recommended removing the ‘private dwelling’ protection for hate speech. English PEN strongly opposes such a change to the law. Indeed, we recommend the inclusion of a ‘private conversation’ defence to protect private speech that happens to take place in public.
Finally, the commission asks whether the concept of ‘privileged’ speech that currently operates in defamation law could also be introduced for hate speech. English PEN believes that there should be an absolute right of citizens to repeat and republish words spoken in parliament, courts, and other official settings.
In Harmful Online Communications: The Criminal Offences, the Law Commission proposes an overhaul of the criminal offences governing electronic communications, including social media. English PEN has consistently called for the reform of these offences.
The Law Commission proposes abolition of the current offences, which criminalise ‘grossly offensive’ messages alongside threats and abuse. In our consultation response, we welcome this proposal.
In its place, the Law Commission proposes a harm-based offence. If there are to be laws that criminalise certain kinds of online communications, then we consider such an approach to be preferable to the current law. In general, restrictions on freedom of expression only become permissible when they infringe on other human rights, and only then if the curbs on free speech are limited and proportional.
However, in our response we express concern at the ‘serious psychological distress’ standard for harm that the Law Commission proposes. Without recourse to objective clinical standards, the law would almost certainly be too vague and subjective, and therefore cast a ‘chill’ on freedom of expression.
Throughout our response, we also distinguish between messages that are broadcast to the world at large (for example on a blog or to all one’s social media followers) and messages that are addressed to one or more individuals (for example via email, direct message, or a ‘tagged’ social media post). The Law Commission’s proposals do not distinguish between these two conceptually different types of message, and we believe that they should. Measures that might be proportionate when applied to targeted/addressed communications could cast an undue ‘chill’ on freedom of expression speech if applied to all social media and web posts.