Written evidence from English PEN (FOE0147)

Introduction

English PEN is a writers’ association. Through our campaigns and programmes, we promote literature across frontiers and defend the right to freedom of expression. We are the founding centre of the PEN International network of 140 centres in 110 countries.

Does hate speech law need to be updated or clarified as shifting social attitudes lead some to consider commonly held views hateful?

In their call for submissions, the Committee asks whether hate speech laws should be updated to accommodate ‘shifting social attitudes’. We suggest that this is the wrong justification for amending hate speech laws and not a reason to update the law. The right to freedom of expression should always include the right to express views that go against prevailing social attitudes.

Rather, if there are to be hate speech laws then the justification should lie in the real-world harm that hate speech can cause to groups or to individuals. Laws should only be introduced or modified when that harm can be evidenced and is sufficiently prevalent to warrant the intervention of the criminal law.

The recent Law Commission consultation on reform of hate crime laws proposed an evidence-based framework for the addition of characteristics to the list of those that are protected by hate speech and hate crime laws.[1] In our response to the consultation, English PEN welcomed this approach.[2]

Our response also welcomed the Law Commission’s proposal that the various laws governing hate speech be standardised.  A simpler law will be easier for citizens to understand and should lead to marginal reduction of the ‘chill’ on legitimate freedom of expression that such laws may create.

However, we also expressed serious concern that the definitions employed in current and proposed hate speech laws are vague and overbroad. Concepts such as ‘stirring up’ and ‘inflammatory material’ do not have clear definitions set out in statute, and it is left to the police, the CPS, and the Courts to develop definitions for themselves as cases arise. This renders the law inaccessible to ordinary people, and so increases the ‘chill’ on freedom of expression.

Our response to the Law Commission consultation strongly opposed the suggested removal of the ‘private dwelling’ exception for hate speech. This would fundamentally change the nature of the law and, in our view, would represent a disproportionate infringement on Article 8 and 10 rights that would significantly undermine public acceptance of the law.

Does current police guidance and practice on hate speech law help promote freedom of expression? Is greater clarity required to ensure the law is understood and fair?

We note that the police’s duty to investigate reported crimes can place them in an invidious position with regards to free speech. If hate speech laws and other communications offences are worded too broadly, they enable people to report their ideological opponents to the police, who are then bound to investigate.

Such investigations can themselves create a ‘chill’ on freedom of expression. However, it is difficult to see how the police could change their approach when the underlying laws lack focus and clarity.

The solution to the problem of ‘chilling’ police investigations is for parliament to create laws with a clearly defined ‘conduct’ element, against which both the public and the police may measure potential hate speech. Since hate speech laws have such a wide reach (covering the daily online expression of millions of people), they should err on the side of freedom of expression. Parliament should resist the urge to broaden the scope of hate speech laws in order to capture edge cases. We fear that the Law Commission’s proposals for reform of the hate speech laws, and their parallel proposals for reform of communications offences [3], fall into this trap.

29/01/2021

Does everyone have equal protection of their right to freedom of expression?

Everyone should have equal protection of their right to freedom of expression. Equality before the law is a basic tenet of democracy and should not be contingent on who you are. For example, British laws should grant foreign citizens the same free speech rights as British citizens, and children should have the same rights as adults.

A demand for this kind of equality is different from asserting that all forms of speech should receive equal protection. Article 10(2) of the European Convention on Human Rights affirms that freedom of expression is a qualified right and may be curbed in order to protect other rights. It is understood that some forms of expression, such as child pornography or direct threats of violence, are prohibited; and that the civil law might place additional curbs on freedom of expression to protect privacy, reputation, or intellectual property rights.

That some people might find their rights curbed in respect to these kinds of expression does not equate to that person enjoying less protection than other citizens. The law should be targeted at the speech, not the speaker.

It should be remembered that promoting freedom of expression does not only mean the protection of an individual’s right to say something offensive or controversial. It also means protecting and promoting an individual’s right to receive information, and ensuring a diversity of voices in the political and cultural conversation. English PEN recognises that any discussion of freedom of expression must also be a discussion of power, justice and equality. A government genuinely committed to protecting freedom of expression would strengthen freedom of information laws; and ensure that all citizens are equipped with literacy skills, and the access to literature afforded by libraries.

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