Freedom [OF/FROM] Speech.
Freedom of expression is a fundamental right protected under the Human Rights Act 1998 by Article 10 of the European Convention on Human Rights. These contexts include employment, service delivery and education. This may require them actively to challenge the use of offensive communication.
No one can rely on the human right to freedom of expression to limit or undermine the human rights of others.
Offensive or insulting language may also constitute harassment, either under the Equality Act 2010, or if directed at an individual under the Protection from Harassment Act.
They are also subject to particular duties which require them to have due regard to the need to promote good relations between different communities protected by equality law. In addition to the criminal law, there are a number of different contexts in which the law provides additional protection against offensive or harassing conduct.
Protection under Article 10 extends to the expression of views that may shock, disturb or offend the deeply-held beliefs of others. It is not always easy to draw the boundary between expressing intolerant or offensive views (which are afforded protection under Article 10) and hate speech or other very offensive communication so serious that it is not so protected.
Freedom of Expression is not an absolute but a qualified right which means that the rights of the individual must be balanced against the interests of society.
Speech that is intended to inform rather than offend attracts greater protection, even if it could be construed as racist. Beliefs, opinions and ideas – even deeply-held beliefs – cannot be immune to criticism or satire.
Whether a restriction on freedom of expression is justified is likely to depend on a number of factors, including the identity of the speaker, the context of the speech and its purpose, as well as the actual words spoken or written.
The courts have generally held that the right to free expression should not be curtailed simply because other people may find it offensive or insulting. In particular, the restriction must be proportionate to the legitimate purpose that the state or public bodies are seeking to uphold.
Specific offences classified as hate crimes
- An aggravating factor for any other offences committed through racial or religious hostility
- Specific offences classified as hate crimes Some specific offences classified as hate crimes which may be relevant to freedom of expression include: stirring up hatred, sending threatening and grossly offensive communications and harassment contrary to the Protection from Harassment Act as well as, in Scotland, offences aggravated by prejudice.
Racial hatred requires threatening, abusive or insulting words or conduct and an intention to stir up hatred, or a likelihood of doing so. Religion or sexual orientation hatred requires threatening words or conduct and an intention to stir up hatred.
In Scotland, only those parts of the Public Order Act which prohibit racial hatred are in force and the Public Order Act is rarely used in practice.
The elements to the offence of stirring up racial hatred differ from those for stirring up hatred based on sexual orientation or religion.
If the offence is committed as a result of ‘malice and ill-will’ this can be taken into account in sentencing, as an aggravated offence. The Law Commission reported on the potential extension of the law on hate crime, in particular, suggesting that the aggravated offences might be extended to disability, sexual orientation and transgender identity.
Racially or religiously aggravated offences Any criminal offence which is perceived by the victim or any other person to be motivated by hostility towards a person’s race or religion or perceived race or religion is a racially or religiously aggravated crime across GB.
sources: Equality and Human Rights Commission · http://www.equalityhumanrights.comaccessed 10/07/2017 -Published February 2015. (v1.1 March 2015). Merlin Entertainment LPC and others v Peter Cave  EWHC 3036 (QB)-S.39 Criminal Justice and Licensing (Scotland) Act 2010-25 Section 16 of the Marriage and Civil Partnership (Scotland) Act 2014 and the Prosecution Guidance in relation to Same-Sex Marriage. -Section 1 Malicious Communications Act 1988. – Section 6 of the Offensive Behaviour at Football Matches and Threatening Communications (Scotland) Act 2012. – Section 127 of the Communications Act 2003.Image Credit: Flickr/JAM Project