Monday, 6 October 2008

WRONG: Free speech is protected in the UK

Even in America, where the First Amendment is so well known it’s practically a celebrity, freedom of speech is limited. You may not directly incite the overthrow of the government, for example, though talking in broad terms about how a hypothetical revolution might, sort of, be a good thing, is okay.

In Britain, Article 10 of the European Convention on Human Rights (enshrined in domestic law as the Human Rights Act of 1998) protects “the right to freedom of expression”. However, the less-well-quoted second paragraph adds a series of get-out clauses regarding national security, public health and safety, crime, defamation, confidentiality and judicial impartiality. In other words, free speech is not free. Speech costs, and right here’s where you start paying.

Defamation is perhaps the harshest restriction. Those accused of it in the UK are, in a sense, guilty till proven innocent. The burden of proof is on the defendant. If you’re accused of defamation – and it’s not in question that you said what they say you said – you have to prove that what you said was not defamatory. There are four grounds for this:

1. What you said was true. Eg, Jeffrey Archer is a liar. (He was convicted of perjury, therefore he is uncontestably a liar.)

2. It was “fair comment”, or, in other words, merely an opinion. But to be fair comment, a jury must agree that it is responsible, constructive and informed. They must also determine that it was not made with malice. Eg, Jeffrey Archer is not a suitable candidate for the priesthood.

3. It was in the interest of the public (as opposed to being of interest to the public) and not motivated by malice. Traditionally the case for public interest has been hard to make, but would typically involve a cabinet minister doing something unethical.

4. It was said by a peer or MP in the Houses of Parliament in the course of parliamentary proceedings, or under oath by a witness in a court of law. Additionally, a third party reporting neutrally from either of those places may repeat the claims without being guilty of defamation. Neutral reporting is not necessarily a defence in other circumstances. Saying “According to Fred Bloggs, Jeffrey Archer is a bag of shit” is just as defamatory as Fred Bloggs’ original statement. So is “Allegedly, Jeffrey Archer is a bag of shit”. The only reason newspapers get away with playing the “allegedly” card is that it’s not usually worth the plaintiff’s time and effort pursuing in court everyone who repeats an allegation after the first instance.

Unless, of course, the original statement was made by someone with no funds, but repeated by a newspaper or magazine with deep pockets and a weak case.

Another exception to the freedom of speech is the legislation concerning incitement to racial and religious hatred – in the words of the Act, you may not “stir up hatred” against anyone on racial or religious grounds. But how do you define a religion or a race? And what, precisely, constitutes “stirring up”? Is it illegal to say, “I think everyone should hate Aum Shinrikyo members”, bearing in mind that fair comment is not a defence for incitement to religious hatred? (Aum Shinrikyo is the Japanese cult behind the sarin gas attacks on the Tokyo underground)

What about, “I applaud anyone willing to slap a Norwegian”?

There are many more examples of “unfree” speech:

• Perjury: you cannot lie under oath in court. Well, you can, but you’re leaving yourself open to arrest. (Jeffrey.)
• Similarly, you can’t give a judge backchat or talk out of turn, or you’ll risk being in contempt of court.
• Judges can restrict court reporting. Some cases in Family Court or involving national security are heard in camera (ie privately), and the press may not report the names of rape or blackmail victims. The press may also be subject to a temporary ban on reporting certain proceedings, such as committals, at which a magistrate decides whether there is enough evidence for a jury trial.
• You can’t plagiarise someone or otherwise infringe their copyright, though you may quote someone else’s material in a published work within legally proscribed limits.
• Technically, you can’t blaspheme against the god of the Church Of England, though recently courts have tended to leave it to Him to punish transgressors.
• You can’t make a protest within a kilometre of Parliament without a permit.
• You can’t lie about your products in advertising material.
• Breach of confidence is illegal – you may not, for example, tell anyone about your time working as Jade Goody’s personal nutritionist if your contract with her expressly forbade telling tales.

As a postscript, please don’t slap Norwegians, they’re a lovely bunch of people. Except the black metal band Mayhem. Before they even released their first album, the singer, Dead, had lived up to his name by committing suicide and the bassist Count Grishnackh had killed the guitarist Euronymous by stabbing him 24 times. The replacement guitarist, Blasphemer, later fired the replacement singer Attila (his real name, somewhat improbably) by kicking him down the stairs and smashing his head twice into a wall. The second replacement singer, Maniac, accidentally fractured a fan’s skull when he threw a severed sheep’s skull into the audience. Drummer Hellhammer, meanwhile, is the reliable band member: when not on tour he works as a night watchman in a mental hospital. Snaps to Chris Campion of The Observer for digging up the details of this story. So to speak.

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