The Author

Richard Mason

Richard is a local coordinator for European Students for Liberty. He is an active writer on current affairs from a pro-liberty standpoint, and is Editor-in-Chief of the blog SpeakFreely. He is currently an intern at the Institute of Economic Affairs in London, UK.

In the United Kingdom, the right to free expression remains guaranteed for all citizens under the European Convention on Human Rights (ECHR), as well as by the British Human Rights Act. Legally, under these legislation, no British citizen may have his or her right to expression infringed upon except in cases whereby national security or morality is threatened, or in cases of libel, incitement of criminal activity, or other extenuating circumstances.

These circumstances in which speech may be limited are noticeably rather vague; what constitutes a threat to national security or morality is left undefined by the convention. Although the UK government must guarantee the right to free expression, it has considerable room to decide when that expression crosses the line into criminality.

Jailed for a Joke

Never has this freedom of the state been more present, as Scottish YouTuber ‘Count Dankula’ (real name Mark Meechan) is convicted of a hate crime for uploading a video of his girlfriend’s pet dog raising its paw to commands of ‘sieg heil’ and ‘gas the jews’.

Although the joke has been (perhaps justifiably) criticised as offensive, many have also criticised the court’s decision as being anti-free speech. Famous comedian Ricky Gervais is among this group, arguing that “If you don’t believe in a person’s right to say things that you might find “grossly offensive”, then you don’t believe in Freedom of Speech”.

Offensive or not, Meechan’s case demonstrates a worrying freedom (and willingness) of the British state to exploit the loopholes provided to it by the ECHR. Was national security threatened by Meechan’s pug? Almost certainly not, and neither was there a call for criminality or an attempt to commit libel.

Why, then, has it been possible here for free expression to be limited?

It is a Crime to be Offensive?

The Scottish court seems to be building the case for its verdict based on the “protection of public health or morals” aspect of the ECHR. Sheriff O’Carroll, the judge who delivered the decision, defended the conviction on the grounds that “”The accused knew that the material was offensive and knew why it was offensive. Despite that the accused made a video containing anti-Semitic content and he would have known it was grossly offensive to many Jewish people”.

In sentencing Meechan based on the offensive content of his video, the court has displayed how troublingly broad the definition of ‘protection of public morals’ may be perceived. In this case, offensive humour has been taken to be a considerable enough threat to British morality to warrant legal action.

What does this mean within the larger context of free speech in Britain, however? First and foremost, it raises the question: If offensive humour is enough to warrant an arrest, what other forms of expression might be affected? Are all bad-taste jokes to be considered an attack on the British public morals?

Unfortunately, the legal protection of free expression in the UK is so vague in its wording, that the line between free speech and hate speech is blurred to the point of invisibility. Although Meechan’s joke was undoubtedly in risky territory, few could have predicted such a heavy-handed response.

The undefined limits of free expression in Britain point to a troubling scenario in which people self-censor themselves for fear of breaking the law – a phenomenon known as the ‘chilling effect’. Without a clear definition of what constitutes hate speech, citizens may find themselves increasingly subject to this effect.

In any case, there is a need both for more transparent free speech rights in Britain. Without clear definitions, British citizens cannot be expected to universally comprehend the line between free expression and hate speech.

Better yet, citizens of the UK should be free to express themselves totally free from state persecution. Comedians like Meechan should be free to make bad jokes, and audiences should be free to decide whether to laugh or not.

After all, the rather subjective concept of ‘offence’ offers little foundations for a decision to take legal action. One cannot guarantee that a joke or statement will be entirely non-offensive, and studies into the effects of offensive speech (such as this 2009 paper from Timothy Jay of the Massachusetts College of Liberal Arts) highlight how decisions to legally restrict certain forms of expression based on a generalised model of offence is illogical.

Thus, one can observe a problem with the British government’s approach to free expression. Citizens cannot be expected adhere to the vague standards of acceptable speech, and efforts must be made to ensure the protection of legitimate expressions, be they comedic, offensive, irreverent or otherwise.

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