Freedom of Expression

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Freedom of Expression

• Andrew Puddephatt
• Visiting Fellow
• London School of Economics

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Freedom of expression - a fundamental human
right.

• Give me liberty to know, to utter and to argue
  freely according to conscience, above all
  liberties Milton
• Freedom expression embraces artistic and cultural
  expression, commentary upon contemporary public
  affairs and the right to express opinions

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Aeropagitica

• censorship is a barrier to learning
• truth cant be known unless all points of view
  are considered
• freedom of expression necessary for material
  progress
• no-one is wise enough to be a censor
• truth will defeat falsehood in open competition
• a nations unity comes from blending individual
  differences, not imposing from above

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Modern justifications for freedom of expression

• freedom of expression essential to human
  self-realisation
• freedom of expression is the foundation right of
  democracy, that without which others rights and
  freedoms cannot be sustained.
• freedom of expression underpins social,
  environmental and development progress no
  famine in a country with a free press and free
  elections as Amartya Sen put it.

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Historically, freedom in Britain is the silence
of the law

• freedoms come about because of specific
  judgements made at specific times e.g. Entick v
  Carrington in eighteenth century.
• Guaranteed by independent judges rather than
  statutes

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Human Rights Act

• Guarantees right to freedom of expression with
  certain restrictions
• UK system has the primacy of law and the central
  role of the courts in adjudicating decisions
• public officials cant make decisions without
  review by the courts

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restrictions to the right to freedom of
expression

•          National security, territorial
  integrity and public safety
•          Official Secrets legislation
•          Contempt of Parliament, protection of
  authority and impartiality of judiciary
•          Prevention of disorder and crime
• Particularly sensitive is restriction on
  propagation of racial hatred

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Regulation

• no prior censorship by the state in the UK
  except for videos, DVDs and computer games,
  largely for reasons of obscenity and violence
• Ofcom is broadcast regulator and must-
• 1. Maintain plurality in the provision of
  broadcasting
• 2. Apply adequate protection for audiences
  against offensive or harmful material
• But its decisions are reviewable by the courts

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Publish and be damned

• News papers and the broadcast media are free to
  say what they want and it is up to the aggrieved
  person to take action
• Restrictions on rights upheld by courts when
  necessary in a democratic society. A democratic
  society is considered to be one based on the
  concepts of "pluralism, tolerance and
  broadmindedness."

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Necessary in a democratic society?

• fulfil a pressing social need
• pursue a legitimate aim
• there must be a reasonable relationship of
  proportionality between the means employed and
  the aim pursued
• Public officials are regarded by the courts as
  less in need of protection from insult than
  ordinary citizens

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The right to free expression is not
absolute.Limitations might include

• Official secrecy and national security
• Defamation
• Racial hatred
• Breach of confidence
• Public interest override

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Conclusions for UK

• Public officials do not have discretion to impose
  censorship
• Restrictions on freedom of expression have to be
  prescribed by law and reviewed by the courts
• Official secrecy most sensitive area terrorism
  and policing issues

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The right to offend?

• one person's attempt to shock, outrage and offend
  is another's legitimate form of creative
  expression
• Notions of offence can essentialise particular
  traditions as representing the Sikh, Muslim,
  Christian or Hindu way
• Offence is part of how we debate issues in a
  vigorous and open culture

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Media requires legal protection

• Freedom of expression guaranteed in all
  international instruments Universal Declaration
  of Human Rights and International Covenant on
  Civil and Political Rights (signed but not yet
  ratified by government of China)
• How ?
• Broad constitutional provision guaranteeing
  freedom of expression
• Specific national laws dealing with specific
  issues
• prior censorship
• Methods of establishing media outlets
• Conditions for becoming a journalist
• False reporting and protection of reputations

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How to provide freedom of expression

• restrictions administered by independent
  regulator
• Subject to review by independent courts against
  relevant human rights provision
• Freedom to establish media without undue
  regulation
• Allocation of wavelengths to be made by
  independent body with due account to regional
  balance and requirements of competition

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Becoming a journalist

• No compulsory membership of union
• Encourage a culture of self regulation and
  professionalism
• No false reporting and protection of reputations
• But false reporting only punishable if done with
  malicious intent (dont punish honest mistakes)
• Institutions cannot be defamed
• Legitimate to criticise public figures, balanced
  with need to respect legitimate privacy concerns

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Challenge for Chinese media

• Surviving in a commercial competitive market
• Adapting to new technologies e.g. internet
• Establishing itself on the global stage as China
  itself becomes global actor
• Avoiding powerful monopolies or privileged
  status

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Finally

• Chinese media need the certainty and transparency
  of law guaranteeing their independence
• The right to report freely on issues as well the
  responsibility to do so accurately and
  independently
• The ability to operate in the market place
  without non commercial constraints
• Strong code of ethics