Free speech has limits

19 October 2022 - House of Lords Library -

Freedom of expression online: Communications and Digital Committee report - House of Lords Library (parliament.uk)

The rights and limits to freedom of expression

Freedom of expression is the right to express and receive opinions, ideas and information. Expression and exchanges of views increasingly take place online, including through social media platforms, websites and search engines.

The right to freedom of expression is balanced by the responsibilities held by government, media and technology, and citizens. It is not an unrestricted right

and is subject to legal limits. While the UN general assembly recognised in December 1948 that freedom of expression was a fundamental right to be universally protected, subsequent international agreements have recognised there can be limits to this right. For example, the European Convention on Human Rights (ECHR), adopted in 1950, was clear that the right may be limited by law. Article 10 of the convention reads that “everyone has the right to freedom of expression” but that this freedom may by subject to restrictions for a variety of reasons, including to protect the rights of others:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the UK, the Human Rights Act 1998 brought article 10 of the ECHR into domestic law.

UK criminal or civil law applies both online and offline and can be relevant to online communication and activity. The right to freedom of expression is subject to a range of restrictions in UK law, including the:

• Malicious Communications Act 1988 and the Communications Act 2003, which criminalises “indecent or grossly offensive” messages and threats
• Public Order Act 1986, which contains offences for stirring up hatred on the grounds of race, religion or sexual discrimination
• Terrorism Act 2006, which criminalises the publication and dissemination of material that could be seen as encouraging acts of terrorism

Equality and Human Rights Commission

Article 10: Freedom of expression | EHRC (equalityhumanrights.com)

Online Safety Act 2023

The Online Safety Act 2023 (legislation.gov.uk)

Online Safety Act: explainer - GOV.UK (www.gov.uk) 

How the Act affects companies that are not based in the UK 

The Act gives Ofcom the powers they need to take appropriate action against all companies in scope, no matter where they are based, where services have relevant links with the UK. This means services with a significant number of UK users or where UK users are a target market, as well as other services which have in-scope content that presents a risk of significant harm to people in the UK.

In principle, it appears that action could be taken within the UK against an internet service such as X (Twitter) which is based in San Francisco, California with servers and offices in other places in the USA.  

One wonders how well such action might be received in the USA given First Amendment rights (video).

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

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