We obsess over free speech. It is a club with which we beat anyone who we believe is trying to silence us, or otherwise make our opinion unheard. I live in Northern Ireland, so my legal right flows from the European Convention on Human Rights (ECHR) via a combination of the Human Rights Act 1998 (HRA) and the Northern Ireland Act 1998 s6(2) (NIA). Additionally the Charter of Fundamental Rights of the European Union applies in certain circumstances.
If you look at the ECHR the phrases “Free Speech” and “Freedom of Speech” do not actually appear. The relevant article is article 10, “Freedom of Expression”, which says:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Paragraph 1 is the one we trot out. Paragraph 2 doesn’t get so much airtime. The right to freedom of expression is not unqualified (compare Article 3 which prohibits torture and is short and succinct). There are recognised needs to curtail the freedom of expression. Even if you ignore state decisions such as “national security” or “protection of morals” it is still necessary to respect the right of others. The common tension is between the right to Freedom of Expression and the Right to respect for private and family life (Article 8), but prevention of disclosure of information received in confidence is also explicitly called out.
These qualifications on the right to freedom of expression shouldn’t seem surprising. Society is all about balancing the needs of everyone to try and achieve some sort of harmony. We can be generally in favour of a free press while also accepting that there need to be some limits on how much they can intrude into people’s personal lives. Equally just because one finds doxxing despicable doesn’t mean one is against freedom of expression. We need to stop the black and white view that any attempt to curtail freedom of expression, no matter what the context, is a violation of an unqualified fundamental right. Too much simplification of the details takes place.
The other thing that needs to be remembered is that this right relates to governments - “without interference by public authority”. It doesn’t say anything about what you as a private individual have to do to enable my right to freedom of expression. I can’t force you to read this blog, or provide me with aggregation on your site to help me reach a wider audience. Equally I don’t have to host comments that are spam, or that I find offensive. No one’s right to freedom of expression is impinged here; I can blog what I like if I’m the one hosting it, people can conduct their marketing in other forum without me being able to prevent them doing so.
We also don’t see any statement about what organisations have to do. The HRA talks explicitly about being able to review the actions of public authorities, but it is rightly silent on anything to do with private organisations. If you can’t be seen as acting as an arm of the government, the HRA doesn’t apply. Organisations don’t have to support the views of those they disagree with - just look at the split in newspapers over whether Brexit is a good thing or not - or things unrelated to the organisation (there’s no reason I would be syndicated on Planet GNOME). That might be disappointing to individuals, but trotting out Freedom of Expression as a defence or a justification for why an organisation should help promote our views just fails to understand the nature of the right.
I don’t make any points above that haven’t been made more eloquently by others countless times, but sometimes I feel we need to be reminded of them.