In December, I worked with English PEN on their responses to two important Law Commission Consultations: Hate Crime, and Reform of the Communications Offences. The two documents we submitted are on the English PEN website, along with an explanatory blog post.
On hate speech:
In Hate Crime Laws: A Consultation Paper, the Law Commission made a number of proposals for reform. It recommended that decisions on what ‘protected characteristics’ should be included in hate crime and hate speech laws should be dependent on a ‘demonstrable need evidence by prevalence’ and that the laws around hate speech, currently found in Part 3 and 3A of the Public Order Act 1986, should be standardised and streamlined. The Commission also recommended that ‘insulting’ words should no longer be included in any criminal definition. In our consultation response, English PEN welcomed these proposals. If hate speech laws continue to be a part of our legal framework, then measures that simplify and narrow the definition of what constitutes hate speech should reduce the ‘chill’ on freedom of expression.
The commission also recommended removing the ‘private dwelling’ protection for hate speech. English PEN strongly opposes such a change to the law. Indeed, we recommend the inclusion of a ‘private conversation’ defence to protect private speech that happens to take place in public.
On the communications offences:
The Law Commission proposes abolition of the current offences, which criminalise ‘grossly offensive’ messages alongside threats and abuse. In our consultation response, we welcome this proposal.
In its place, the Law Commission proposes a harm-based offence. If there are to be laws that criminalise certain kinds of online communications, then we consider such an approach to be preferable to the current law. In general, restrictions on freedom of expression only become permissible when they infringe on other human rights, and only then if the curbs on free speech are limited and proportional.
However, in our response we express concern at the ‘serious psychological distress’ standard for harm that the Law Commission proposes. Without recourse to objective clinical standards, the law would almost certainly be too vague and subjective, and therefore cast a ‘chill’ on freedom of expression.
Throughout our response, we also distinguish between messages that are broadcast to the world at large (for example on a blog or to all one’s social media followers) and messages that are addressed to one or more individuals (for example via email, direct message, or a ‘tagged’ social media post). The Law Commission’s proposals do not distinguish between these two conceptually different types of message, and we believe that they should. Measures that might be proportionate when applied to targeted/addressed communications could cast an undue ‘chill’ on freedom of expression speech if applied to all social media and web posts.
Last month I blogged about an example of the kind of speech that absolutely should not be criminalised, but nevertheless could be, if the law is drawn too widely.
I’m toying with the idea of writing something about how, for free speech offences, the actus reus (i.e. the conduct element of the offence, the thing you have to do in order to be prosecuted) should be as clear as possible — regardless of any mens rea requirements that might limit the reach of the law. This is because investigations into alleged speech offences are themselves an infringement on free speech rights, which could chill legitimate expression.
If I have time, I may also post some observations about the Law Commission’s proposals that we left out of the final response.