Helga Law Journal - 01.01.2021, Page 177

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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7.2 The First Thread: Examining the Right to Expression in
Realspace and Cyberspace
Free speech did not truly gain momentum in English law until the Human Rights
Act of 1998 (HRA), which protects Article 10, the right to freedom of expression
guaranteed under the ECHR.325 Nowadays, the right to freedom of expression is
firmly rooted in both the common law and at statutory level. In Reynolds v. Times
Newspapers Ltd, Lord Steyn remarked that the right to freedom of expression is
‘constitutional’ thereby, bestowing a ‘higher normative force’ on this
fundamental right.326 However, despite a strong legal foundation for realspace
speech and the potential to develop a robust cyberspace regime, the current
status quo is ambiguous, which has also left the right to online assembly and
association in a limbo.
Determining the exact degree to which our rights to expression and protest
online can be exercised is especially tricky due to the difficulties associated with
identifying acceptable speech, as well as the fact that cyberspace is constantly
evolving.327 Notably, even in the physical world, both common law and the
Convention accept that freedom of expression is not limitless. Furthermore, on
an international level, its parameters are drawn by Article 19 of the International
Covenant on Civil and Political Rights (ICCPR), which stresses that restraints
must have a ‘legitimate aim’ as well as be ‘necessary and proportionate’.328 In
regards to implementation, the United Nations’ Human Rights Committee
established a lex specialis to Article 19: a state obligation is contained in Article 20
to ban propaganda that incites war and any ‘advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or
violence’.329 Such standards have consequently introduced an array of ambiguities
into the qualification process of what constitutes “hate speech”. The challenge is
heightened in the online environment due to its unique structure. Sunstein
explains that ‘the nature of the internet is to isolate individuals behind screens’,
on top of this there is no ‘homogeneity of information… [because] users can
choose to only receive certain information’.330 Thus, the layout of the internet
can cause, for instance, sarcastic remarks to be misinterpreted because the
author’s tone and facial expression are unknown. Thoughts and opinions can
also be easily taken out of context because of filters which individuals may have
applied. This matter is even more troubling if the speech in question pertains to

325 Human Rights Act of 1998.
326 Reynolds v. Times Newspapers Ltd and Others [1991] UKHL 45, [1999] 4 All ER, [156] (Lord Steyn).
327 Nani Jansen Reventlow, 'The Right To ‘Offend, Shock Or Disturb,’ Or The Importance Of
Protecting Unpleasant Speech' [2017] Perspectives on Harmful Speech Online
<https://cyber.harvard.edu/sites/cyber.harvard.edu/files/2017-08_harmfulspeech.pdf> accessed
25 June 2018.
328 United Nations Human Rights Committee, General comment No. 34: Article 19: Freedoms of
opinion and expression, International Covenant on Civil and Political Rights, UN Doc CCPR/C/GC/34,
http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf.
329 Reventlow (n 4), 8.
330 Cass R Sunstein, Republic.Com 2.0 (Princeton University Press 2009) 46-96.
protest. Fear of triggering the “hate speech” standard can chill digital social
movements and curb the expression of online protesters for three key reasons.
The first, being the architecture of the internet, which makes it easier to
misunderstand communications. The second is because the essence of protest
speech is often highly opinionated and may be extreme. While the third cause is
that attitudes towards what is an acceptable expression and what is not, are largely
subjective and legal boundaries of speech vary across jurisdictions. In the US for
example, in the landmark case Reno, Judge Stevens’ majority opinion confirmed
that the First Amendment’s protection of speech extends into cyberspace.331
While, in the UK, there is no written constitution, no free speech law such as the
First Amendment, nor a case like Reno, instead, freedom of expression and
assembly are qualified rights. Restraints on these freedoms are accepted if they
are necessary and proportionate. Moreover, in light of the fact that states are
obliged to ban propaganda that contains “hate speech”, a reasonable threshold
and a transparent test to evaluate speech are needed. As it stands, it is unclear
what kind of protest speech is truly protected by law, which leaves many
individuals in a vulnerable position and may deter the exchange and defence of
controversial ideas regarding sensitive topics such as religion online. Thus, the
chilling of expression may also have far-reaching consequences on our exercise
of democracy.
7.2.1 The Current Legislative Framework on Digital Speech
The UK has tried to respond to the challenges of digital speech by including
targeted provisions within the greater legal regime, which governs
communications, namely s. 1(1) of the Malicious Communications Act 1988
(MCA) and s. 127 of the Communications Act 2003 (CA). However, Geach and
Haramlambous posit that the current law is ‘inaccessible, uncertain and thus
inadequate’ to meet the obstacles posed by today’s evolutionary online
environment.332 Currently s. 1(1) of the MCA 1988 states that:
A person who sends to another person:

(a) a letter, electronic communication or article of any
description which conveys
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or
believed to be false by the sender; or
(b) any article or electronic communication which is, in whole
or in part, of an indecent or grossly offensive nature, is
guilty of an offence if his purpose, or one of his purposes,

331 Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
332 Neal Geach and Nicola Haralambous, 'Regulating Harassment: Is The Law Fit For The Social
Networking Age?' (2009) 73 The Journal of Criminal Law.
<http://journals.sagepub.com/doi/abs/10.1350/jcla.2009.73.3.571> accessed 25 June 2018.