The principles of Freedom of Belief and Expression are protected by the European Convention on Human Rights (ECHR) and the UK Human Rights Act. The Human Rights Act incorporates the rights set out in the ECHR into domestic British law. Article 9 of the Human Rights Act protects the right to freedom of thought, belief, and religion, including the right to change one’s religion or beliefs at any time. It also protects the right to put one’s thoughts and beliefs into action, such as wearing religious clothing, talking about beliefs, or taking part in religious worship.
Public authorities cannot stop individuals from practising their religion or expressing a legitimately belief held without a very good reason. The ECHR also protects the right to freedom of thought, conscience, and religion, including the freedom to change one’s religion or belief and the freedom to manifest one’s religion or belief in worship, teaching, practice, and observance. Additionally, the ECHR protects the right to freedom of expression, including the right to hold opinions without interference and to seek, receive, and impart information and ideas through any media. The Human Rights Act protects all individuals in the UK, regardless of citizenship or status, and can even be used by companies or organisations.
According to Article 10 of the European Convention on Human Rights, everyone has the right to freedom of expression. This right includes the freedom to hold opinions, receive and impart information and ideas, and express one’s opinion. The freedom of expression is a fundamental right that allows individuals to express themselves freely, without interference from the government or other authorities. This right applies to all forms of expression, including written and spoken words, art, and other forms of communication. The European Court of Human Rights has interpreted Article 10 broadly to include not only information or ideas that are favourably received or regarded as inoffensive, but also those that offend, shock, or disturb. However, this right is not absolute and may be subject to certain restrictions, such as those necessary for the protection of national security, public safety, or the rights of others. The restrictions must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society.
The European Convention on Human Rights (ECHR) plays a crucial role in protecting freedom of expression in Europe. Here are some ways in which the ECHR protects this fundamental right:
- Article 10 of the ECHR guarantees everyone the right to freedom of expression, including the freedom to hold opinions, receive and impart information and ideas, and express one’s opinion.
- The ECHR applies to all 47 member states of the Council of Europe, including the UK, and sets out certain standards of behaviour that governments must abide by to protect the basic rights and freedoms of ordinary people.
- The ECHR is legally binding, and its judgments are enforceable in national courts.
- The ECHR has been interpreted broadly by the European Court of Human Rights to include not only information or ideas that are favourably received or regarded as inoffensive, but also those that offend, shock, or disturb.
- The ECHR recognises that freedom of expression is not an absolute right and may be subject to certain restrictions, such as those necessary for the protection of national security, public safety, or the rights of others. However, any restrictions must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society.
Overall, the ECHR provides a framework for protecting freedom of expression in Europe and ensuring that governments respect this fundamental right. The European Convention on Human Rights (ECHR) therefore protects journalists and media freedom in several ways:
- Article 10 of the ECHR guarantees everyone the right to freedom of expression, including the freedom to hold opinions, receive and impart information and ideas, and express one’s opinion.
- The ECHR recognises that the media play a vital role in informing the public and scrutinising those in power. As such, the ECHR provides special protection for journalists and the media.
- The European Court of Human Rights has developed a body of case law that specifically addresses the rights and responsibilities of journalists and the media. This case law recognises the importance of protecting the confidentiality of sources, ensuring access to information, and promoting transparency and accountability.
- The Council of Europe, which oversees the implementation of the ECHR, promotes an enabling environment for freedom of expression, underpinned by legal guarantees for independence and diversity of media and safety of journalists and other media actors.
- The Council of Europe’s division on freedom of expression works on various subjects related to media freedom, such as protection of journalism and safety of journalists, decriminalization of defamation, gender equality in the media, and countering hate speech.
- The ECHR also protects the right to freedom of assembly and association, which can be important for journalists and media organizations to carry out their work.
The ECHR provides a strong framework for protecting journalists and media freedom in Europe, recognizing the vital role that the media play in promoting transparency, accountability, and democratic values.
Here in the UK, Ofcom, the broadcasting and communications regulator, defines freedom of expression in the Broadcast Code as an essential right to hold opinions and receive and impart information and ideas. It is at the heart of any democratic state and is intrinsically linked to broadcasting. The right to freedom of expression is expressed in Article 10 of the European Convention on Human Rights, which encompasses the audience’s right to receive information.
The Ofcom Broadcasting Code provides special protection for journalists and the media, recognizing their vital role in promoting transparency, accountability, and democratic values. The Code covers standards in programmes, sponsorship, product placement in television programmes, fairness, and privacy. It also outlines standards for broadcast content to provide adequate protection for members of the public from harmful and/or offensive material. The Code is set out in terms of principles, meanings, and rules, and broadcasters must ensure that they comply with the rules as set out in the Code.
Ofcom plays a crucial role in regulating freedom of expression in broadcasting in the UK. Here are some ways in which Ofcom regulates freedom of expression:
- Ofcom’s Broadcasting Code sets out the rules and standards that broadcasters must follow to ensure that their content is appropriate and does not harm the public.
- Ofcom believes that the rules in the Broadcasting Code, insofar as they restrict freedom of expression, do so in a way that meets the requirements of the law while allowing broadcasters to provide a range of content.
- Ofcom’s role includes standing up for free speech in the UK, as well as ensuring that broadcasters comply with the rules set out in the Broadcasting Code.
- Ofcom handles TV complaints and investigates potential breaches of the Broadcasting Code. It has the power to impose sanctions on broadcasters who breach the rules, including fines and revocation of licenses.
- Although Ofcom regulates the content of broadcasts, it recognises the importance of freedom of expression and the role of the media in promoting transparency, accountability, and democratic values.
- Ofcom also provides guidance notes to help broadcasters understand the rules and standards set out in the Broadcasting Code.
Overall, Ofcom’s role in regulating freedom of expression in broadcasting is to ensure that broadcasters provide a range of content that is appropriate and does not harm the public, while also recognizing the importance of freedom of expression and the role of the media in promoting democratic values.
Ofcom has intervened in several cases to protect freedom of expression in broadcasting. Here are some examples:
- In 2020, the Free Speech Union and Darren Grimes challenged Ofcom’s guidance warning against the broadcasting of views that undermine trust in public institutions. They argued that the guidance was a threat to freedom of expression and that Ofcom had overstepped its remit. Ofcom subsequently withdrew the guidance.
- In 2015, The Guardian reported that giving Ofcom the power to intervene in news and documentary reporting prior to broadcast would be a backward shift in regulation and would threaten freedom of speech.
- Ofcom’s Broadcasting Code recognises the importance of freedom of expression and sets out the rules and standards that broadcasters must follow to ensure that their content is appropriate and does not harm the public. The Code also recognises that the right to freedom of expression encompasses the audience’s right to receive information.
- In 2012, Ofcom’s Broadcast Bulletin highlighted the importance of due impartiality in broadcasting and noted that when interpreting due impartiality, Ofcom must take into account the broadcaster’s and audience’s right to freedom of expression.
Overall, Ofcom’s interventions to protect freedom of expression in broadcasting have included withdrawing guidance that was seen as a threat to free speech, recognising the importance of due impartiality, and setting out rules and standards that ensure that broadcasters provide appropriate content while also recognizing the importance of freedom of expression.
Limiting the freedom of expression is the need to avoid causing harm through hateful expression. Ofcom defines hate speech as “all forms of expression which spread, incite, promote or justify hatred based on intolerance on the grounds of “certain characteristics such as race, religion, gender, sexual orientation, and disability. To prevent hate speech in broadcasting, Ofcom can take the following actions:
- Investigate complaints from viewers or listeners who believe that a broadcast has breached the Broadcasting Code’s rules on hate speech.
- Impose sanctions on broadcasters who breach the rules, including fines and revocation of licenses.
- Provide guidance notes to help broadcasters understand the rules and standards set out in the Broadcasting Code, including the rules on hate speech.
- Monitor broadcasts to ensure that they comply with the rules and standards set out in the Broadcasting Code, including the rules on hate speech.
- Work with other organizations, such as the police and the Crown Prosecution Service, to ensure that broadcasters are aware of their responsibilities and that appropriate action is taken when necessary.
It is important to note that Ofcom recognises the importance of freedom of expression and the right to hold opinions and receive and impart information and ideas. However, it also recognises that hate speech can be harmful and can undermine social cohesion, and therefore has a duty to prohibit it in broadcasting.
Ofcom considers the following expressions to be hate speech:
- All forms of expression which spread, incite, promote or justify hatred based on intolerance on the grounds of race, religion, gender, sexual orientation, and disability.
- Intolerance of gender affirmation.
- Potentially offensive language and gestures on TV and radio, such as vulgar and distasteful language and strong language that is generally unacceptable pre-watershed.
- Hateful content that harms and threatens others, which is often seen as the ‘red line’ in terms of free speech and could have a chilling effect on others.
It is important to note that Ofcom’s definition of hate speech is broad and includes any expression that promotes or justifies hatred based on intolerance. Ofcom takes hate speech seriously and investigates complaints from viewers or listeners who believe that a broadcast has breached the Broadcasting Code’s rules on hate speech.
For example, Ofcom considers intolerance of gender affirmation to be transphobic hate speech. This includes any expression that spreads, incites, promotes, or justifies hatred based on intolerance of gender identity or expression. Examples of transphobic hate speech may include:
- Misgendering or deadnaming a transgender person, which means using the wrong name or pronouns to refer to them.
- Using derogatory terms to describe transgender people.
- Making jokes or derogatory comments about transgender people.
- Spreading misinformation or stereotypes about transgender people.
It is important to note that Ofcom’s definition of transphobic hate speech is broad and includes any expression that promotes or justifies hatred based on intolerance of gender identity or expression. Ofcom takes transphobic hate speech seriously and investigates complaints from viewers or listeners who believe that a broadcast has breached the Broadcasting Code’s rules on hate speech.
Ofcom’s expanded definition of hate speech, which includes intolerance of gender reassignment and other characteristics, has had an impact on broadcasters in the following ways:
- Broadcasters must ensure that their programmes do not contain any incitement to hatred based on any of the 18 characteristics, including gender reassignment, social origin, and political or any other opinion.
- Broadcasters must be aware of the expanded definition of hate speech and ensure that their content does not spread, incite, promote, or justify hatred based on intolerance of any of the 18 characteristics.
- Broadcasters must take context into account when considering accusations of hate speech and allow content that challenges boundaries and uses humour to explore societal issues with no harm intended.
- Ofcom will investigate complaints from viewers or listeners who believe that a broadcast has breached the Broadcasting Code’s rules on hate speech.
- Ofcom has the power to impose sanctions on broadcasters who breach the rules, including fines and revocation of licenses.
- Ofcom recognises the importance of freedom of expression and will interpret the new definition of hate speech consistently with the right to freedom of expression.
Overall, Ofcom’s expanded definition of hate speech has an impact on broadcasters, who must ensure that their content does not promote or justify hatred based on intolerance of any of the 18 characteristics. Broadcasters must also take context into account and allow content that challenges boundaries and uses humour to explore societal issues with no harm intended. Ofcom will investigate complaints and has the power to impose sanctions on broadcasters who breach the rules.
Broadcasters have responded to Ofcom’s expanded definition of hate speech in various ways. Here are some examples:
- Some broadcasters have welcomed the expanded definition of hate speech and have pledged to ensure that their content does not promote or justify hatred based on intolerance of any of the 18 characteristics.
- During the consultation process, ViacomCBS, whose brands include Channel 5, Comedy Central, and Showtime, warned that Ofcom should take context into account when considering accusations of hate speech and allow content that “challenges boundaries and uses humour to explore societal issues” with no harm intended.
- Some broadcasters have expressed concern that the expanded definition of hate speech could have a chilling effect on free speech and could make it more difficult to produce content that explores sensitive issues.
- Ofcom has stated that it will interpret the new definition of hate speech consistently with the right to freedom of expression and will take context into account when considering complaints.
- Broadcasters must ensure that their programmes do not contain any incitement to hatred based on any of the 18 characteristics, including gender reassignment, social origin, and political or any other opinion.
- Broadcasters must be aware of the expanded definition of hate speech and ensure that their content does not spread, incite, promote, or justify hatred based on intolerance of any of the 18 characteristics.
Broadcasters have responded to Ofcom’s expanded definition of hate speech in different ways, with some welcoming the change and others expressing concern about its potential impact on free speech. Broadcasters, however, must ensure that their content does not promote or justify hatred based on intolerance of any of the 18 characteristics and must be aware of the expanded definition of hate speech.
Ofcom has communicated the changes to its definition of hate speech to broadcasters in the following ways:
- Ofcom updated its Broadcasting Code to encompass 18 characteristics, where previously it had four. Under the old code, broadcasters had to ensure that their programmes did not contain any incitement to hatred based on race, sex, religion, or nationality.
- Ofcom has published the updated Broadcasting Code on its website, which includes the expanded definition of hate speech.
- Ofcom has provided guidance notes to help broadcasters understand the rules and standards set out in the Broadcasting Code, including the rules on hate speech.
- Ofcom has stated that it will interpret the new definition of hate speech consistently with the right to freedom of expression and will take context into account when considering complaints.
Overall, Ofcom has communicated the changes to its definition of hate speech to broadcasters by updating the Broadcasting Code, publishing it on its website, providing guidance notes, and stating that it will interpret the new definition of hate speech consistently with the right to freedom of expression.
Ofcom has a process for enforcing its definition of hate speech with broadcasters. Here are the steps in the process:
- Ofcom receives a complaint from a viewer or listener who believes that a broadcast has breached the Broadcasting Code’s rules on hate speech.
- Ofcom investigates the complaint to determine whether the broadcast breached the rules on hate speech.
- If Ofcom finds that the broadcast breached the rules on hate speech, it may take one or more of the following actions:
- Issue a warning to the broadcaster.
- Impose sanctions on the broadcaster, including fines and revocation of licenses.
- Require the broadcaster to broadcast a correction or statement of Ofcom’s findings.
- Ofcom may also work with other organizations, such as the police and the Crown Prosecution Service, to ensure that appropriate action is taken when necessary.
- Broadcasters must ensure that their programmes do not contain any incitement to hatred based on any of the 18 characteristics, including gender reassignment, social origin, and political or any other opinion.
- Broadcasters must be aware of the expanded definition of hate speech and ensure that their content does not spread, incite, promote, or justify hatred based on intolerance of any of the 18 characteristics.
- Ofcom recognises the importance of freedom of expression and will interpret the new definition of hate speech consistently with the right to freedom of expression.
- Ofcom has provided guidance notes to help broadcasters understand the rules and standards set out in the Broadcasting Code, including the rules on hate speech.
Overall, Ofcom’s process for enforcing its definition of hate speech with broadcasters involves investigating complaints, imposing sanctions if necessary, and working with other organizations to ensure that appropriate action is taken. Broadcasters must ensure that their content does not promote or justify hatred based on intolerance of any of the 18 characteristics, and Ofcom has provided guidance notes to help broadcasters understand the rules and standards set out in the Broadcasting Code.
Ofcom balances freedom of expression with the potential harm of hate speech in the following ways:
- Ofcom recognises the importance of freedom of expression and the right to hold opinions and receive and impart information and ideas.
- Ofcom’s definition of hate speech is broad and includes any expression that promotes or justifies hatred based on intolerance of any of the 18 characteristics.
- Ofcom takes context into account when considering accusations of hate speech and allows content that challenges boundaries and uses humour to explore societal issues with no harm intended.
- Ofcom recognises that hate speech can be harmful and can undermine social cohesion, and therefore has a duty to prohibit it in broadcasting.
- Ofcom investigates complaints of hate speech, considers the context of the broadcast, and takes into account the right to freedom of expression when interpreting the new definition of hate speech.
- If Ofcom finds that a broadcast breached the rules on hate speech, it may take various actions, including issuing a warning, imposing sanctions, or requiring the broadcaster to broadcast a correction or statement of Ofcom’s findings.
- Broadcasters must ensure that their content does not promote or justify hatred based on intolerance of any of the 18 characteristics, and Ofcom has provided guidance notes to help broadcasters understand the rules and standards set out in the Broadcasting Code.
Overall, Ofcom balances freedom of expression with the potential harm of hate speech by recognizing the importance of both and taking context into account when considering accusations of hate speech. Ofcom investigates complaints of hate speech and takes appropriate action if necessary, and broadcasters must ensure that their content does not promote or justify hatred based on intolerance of any of the 18 characteristics.
