Helga Law Journal - 01.01.2021, Side 175

Helga Law Journal - 01.01.2021, Side 175
Helga Law Journal Vol. 1, 2021 180 International Legal Research Group 181 ‘[The] role of the court is ‘to ensure that legitimate protest is not stigmatised as unlawful’ such that it will be ‘impossible for the claimants to succeed if their claim would amount to a disproportionate interference with freedom of expression including the expression of protest.’318 This is seen in the Edo case wherein a temporary injunction was granted, given that the protestors would have a quick trial.319 However, action by the firm in ignoring court orders prolonged the trial and ultimately led to the rejection of attempts to render the injunction permanent as they were held to have impeded a quick trial.320 Similarly, attempts by Novartis Pharmaceuticals to prohibit all masks, animal costumes, and banners containing words such as ‘abuses,’ or ‘torture,’ among other actions on its premises as they were “inciting criminal activity by subtle means” were rejected as they were a disproportionate interference with freedom of expression. 321 However, as Mead states, there is a tendency for case law to treat protests with disruptive aspects as non-peaceful, hence subject to PFHA injunctions.322 This equivocates peaceful protest involving minor obstructive elements with more disruptive direct action which arguably goes against the facilitative duty of public authorities and the approach of some degree of tolerance towards public disruption. The gradual limitation of defences exacerbates this, as the s1(3)(c) ‘reasonableness’ defence once considered to apply when vindicating Convention rights323 is now limited to only exceptional circumstances, e.g. rescuing someone from danger.324 Thus, it can be gathered that whilst the court does recognise its obligation to facilitate and give effect to Articles 10 and 11 as per its positive obligations under s6 HRA, in practice its rulings do appear to shift in favour of the private parties seeking injunctions. 6.5 Conclusion The UK, as an ECHR signatory, is bound by the positive obligations to facilitate and protect the rights of assembly and expression in order to ensure its citizens are able to voice their discontent through peaceful methods. The HRA bestows upon public authorities an obligation to act in a Convention compliant way, and as such the courts and the police have had to undertake various measures and balancing in order to give effect to the positive obligations required. Both bodies are empowered to make decisions regarding the extent to which private parties may impinge upon freedoms – either by maintaining the peace and ensuring the 318 Mead, ‘The New Law of Peaceful Protest’ (n 1) 272 citing EDO Technology (Preliminary Issues) [2005] EWHC 2490 [25] (Walker J). 319 Mills (n 43) 131. 320 ibid. 321 ibid 132. 322 Mead ‘A Chill’ (n 29) 106. 323 Mead, ‘The New Law of Peaceful Protest’ (n 1) 272. 324 ibid, DPP v Moseley, Selvanayagam and Woodling, unreported High Court decision, 9 June 1999. safety of protestors or by ensuring that protestors are able to protest in the locations and methods they prefer. However, the likelihood that in attempting to reach the balance between protestors and private rights and maintaining peaceful protest that the rights of protest may be impinged is ever present. 7 How equipped is your country's legal system to face the challenges presented by digital social movements such as #metoo, and how might the right to protest be exercised in this context? 7.1 Introduction In our current digital age, the internet is perhaps one of, if not the most powerful and effective tool of expression. Information and communication technologies (ICTs) have enabled mass and instantaneous exchanges, as well as disintermediation, all of which have successfully combated previous obstacles posed by time and geography. More crucially, the ability to send messages via digital means allow injustices and controversies, which may have gone unnoticed, to be conveyed to the rest of the world, without the burden of physicality. Blogging and other virtual tools of our generation, like weaving, are also art forms that deserve our respect. In many ways, social media can even be said to be a global tapestry of our times, worthy of legal protection because it is the unique junction where different threads come together: stories, opinions and protests. This essay believes that the complexity of cyberspace requires a more refined legal regime for the United Kingdom (UK) to effectively respond to the challenges, which stem from online expression and protest. The points which will be raised build upon the idea that a sound legal footing for the right to offline and online expression, is a necessary building block to support the right to protest in cyberspace. The first thread will explain how ambiguous parameters of acceptable speech, is inadequate to protect expression, particularly digital social movements and protests. Furthermore, despite established laws in regards to realspace speech, the regime governing online speech lacks transparency and consistency. A second thread will examine the existing regulation on physical protests and show that it is inapplicable in the context of cyberspace because of its unique architecture. Therefore, the final thread will tie together the first two, to show that a new legal regime that is specific to cyberspace is urgently needed in order to put an end to the enigmatic status quo, as well as to fairly govern the ever-evolving sphere of online expression and protest. Ultimately, these three threads, seek to persuade readers that the social media tapestry is a vital part of our lives and the right to add to it should be universal and upheld, particularly for those physically-disabled from voicing their suffering.
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