Regulating Freedom of Speech

The Higher Education (Freedom of Speech) Bill is set to put in place new measures for regulating freedom of speech. Gary Attle, Partner at Mills & Reeve LLP reflects on what this may mean for universities. 

Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” ~ John Milton

This quote comes from ‘Areopagitica’, a pamphlet written by John Milton in 1644 in which he argued that the Parliamentary Ordinance passed in the previous year should be overturned. The Ordinance was for the “Regulating of Printing” and required authors to have a licence approved by the authorities before their work could be published.

Milton made the case that people are endowed with reason and should be able to make their own choices about the information they receive. In rich poetic language, he called for Truth and Falsehood to grapple in a free and open encounter.

Freedom of expression is not an absolute right

Freedom of expression is protected in law but it is not an absolute right. Article 10 (2) of the European Convention on Human Rights, for example, provides that the exercise of this freedom carries with it duties and responsibilities. Any restriction on this freedom must be prescribed by law and be necessary in a democratic society on one of a number of specified grounds, for example the prevention of disorder or crime.

It may have been of interest to Milton to know that Article 10 expressly provides that its provisions do not prevent States from requiring the licensing of broadcasting (albeit printing is not mentioned in the list of publication methods in Article 10).

Ofcom’s decision about Good Morning Britain

At the beginning of September 2021, the regulator for broadcasting in the UK – Ofcom – published an important decision about whether a TV broadcaster – Good Morning Britain – breached broadcasting standards. The programme under scrutiny had been aired in March 2021 and was focused on an interview between Oprah Winfrey and the Duke and Duchess of Sussex which had been broadcast in the US overnight.

Over 50,000 complaints were made to Ofcom about the programme. According to Ofcom’s published decision, the majority of the complaints said that “comments about mental health and suicide made by one of the lead presenters, Piers Morgan, were both harmful to the audience and highly offensive and that discussions on issues relating to race and racism in the Programme were highly offensive to some viewers.”

In a carefully considered decision, running to 26 pages, Ofcom confirmed that the programme contained “statements about suicide and mental health which had the potential to be harmful and highly offensive”.

However, Ofcom went on to conclude that “overall the programme contained sufficient challenge to provide adequate protection and context to its viewers. We also considered that the comments about race in the programme could have been potentially highly offensive, but that the comments were sufficiently contextualised.”

Accordingly, the regulator formally decided that the programme did not breach Ofcom’s Broadcasting Code. In doing so, Ofcom noted the right to freedom of expression and the need to protect the public from harm and offence as set out in the Code. Ofcom also noted that its decision was finely balanced and that the issues covered in the Good Morning Britain programme related to matters where it was in the public interest to have an open and frank debate.

Ofcom to uphold codes of practice

It is proposed that Ofcom becomes the regulatory body for issuing and upholding codes of practice under the Government’s draft Online Safety Bill. This proposed legislation will seek to regulate a variety of internet services to mitigate the risk of harm being caused by illegal or harmful content and will create a new duty of care in respect of certain online material.

Office for students as regulator on academic freedom

In the higher education sector in England, the Office for Students (OfS) is being proposed as the regulator for freedom of speech and academic freedom. The Higher Education (Freedom of Speech) Bill proposes that OfS makes decisions on free speech complaints.

Eligible individuals will be able to use a new complaints scheme for alleged breaches of the free speech duties which will be imposed by the new legislation on registered providers of higher education and on certain categories of students’ union.

Registered providers will have a duty to secure freedom of speech within the law for staff, members, students and visiting speakers (as they do now under existing legislation), a duty to secure the academic freedom of their academic staff and a new duty to promote the importance of freedom of speech and academic freedom. Certain students’ unions will have for the first time an express statutory duty to secure freedom of speech within the law for their members, for students of the provider, for staff of the students’ union and for staff and members of the higher education provider. Registered providers and relevant students’ unions will be required to have a Code of Practice setting out how they will discharge their duties.

A new OfS Board post – the Director for Freedom of Speech and Academic Freedom – is to be created by the Bill, when enacted. New conditions of registration relating to freedom of speech and academic freedom will apply to registered providers and will enable OfS to take action against a higher education provider.

OfS will be empowered to issue advice and guidance. It will also be required to report to the Secretary of State, as directed, on matters relating to freedom of speech and academic freedom.

This will be a significant new jurisdiction for the Office for Students. Like Ofcom, OfS is likely to have to make some difficult decisions on complaints in the months and years to come if it is given the statutory role as set out in the Higher Education (Freedom of Speech) Bill and seeks to uphold the right to speak freely on campus, taking into account any lawful restrictions on that freedom.