Helga Law Journal - 01.01.2021, Page 176

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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‘[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.