Helga Law Journal - 01.01.2021, Page 177

Helga Law Journal - 01.01.2021, Page 177
Helga Law Journal Vol. 1, 2021 182 International Legal Research Group 183 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.
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 16
Page 17
Page 18
Page 19
Page 20
Page 21
Page 22
Page 23
Page 24
Page 25
Page 26
Page 27
Page 28
Page 29
Page 30
Page 31
Page 32
Page 33
Page 34
Page 35
Page 36
Page 37
Page 38
Page 39
Page 40
Page 41
Page 42
Page 43
Page 44
Page 45
Page 46
Page 47
Page 48
Page 49
Page 50
Page 51
Page 52
Page 53
Page 54
Page 55
Page 56
Page 57
Page 58
Page 59
Page 60
Page 61
Page 62
Page 63
Page 64
Page 65
Page 66
Page 67
Page 68
Page 69
Page 70
Page 71
Page 72
Page 73
Page 74
Page 75
Page 76
Page 77
Page 78
Page 79
Page 80
Page 81
Page 82
Page 83
Page 84
Page 85
Page 86
Page 87
Page 88
Page 89
Page 90
Page 91
Page 92
Page 93
Page 94
Page 95
Page 96
Page 97
Page 98
Page 99
Page 100
Page 101
Page 102
Page 103
Page 104
Page 105
Page 106
Page 107
Page 108
Page 109
Page 110
Page 111
Page 112
Page 113
Page 114
Page 115
Page 116
Page 117
Page 118
Page 119
Page 120
Page 121
Page 122
Page 123
Page 124
Page 125
Page 126
Page 127
Page 128
Page 129
Page 130
Page 131
Page 132
Page 133
Page 134
Page 135
Page 136
Page 137
Page 138
Page 139
Page 140
Page 141
Page 142
Page 143
Page 144
Page 145
Page 146
Page 147
Page 148
Page 149
Page 150
Page 151
Page 152
Page 153
Page 154
Page 155
Page 156
Page 157
Page 158
Page 159
Page 160
Page 161
Page 162
Page 163
Page 164
Page 165
Page 166
Page 167
Page 168
Page 169
Page 170
Page 171
Page 172
Page 173
Page 174
Page 175
Page 176
Page 177
Page 178
Page 179
Page 180
Page 181
Page 182
Page 183
Page 184
Page 185
Page 186
Page 187
Page 188
Page 189
Page 190
Page 191
Page 192
Page 193
Page 194
Page 195
Page 196
Page 197
Page 198
Page 199
Page 200
Page 201
Page 202
Page 203
Page 204
Page 205
Page 206
Page 207
Page 208
Page 209
Page 210
Page 211
Page 212
Page 213
Page 214
Page 215
Page 216
Page 217
Page 218
Page 219
Page 220
Page 221
Page 222
Page 223
Page 224

x

Helga Law Journal

Direct Links

If you want to link to this newspaper/magazine, please use these links:

Link to this newspaper/magazine: Helga Law Journal
https://timarit.is/publication/1677

Link to this issue:

Link to this page:

Link to this article:

Please do not link directly to images or PDFs on Timarit.is as such URLs may change without warning. Please use the URLs provided above for linking to the website.