The Law Society Gazette has recently reported on Big Brother Watch’s claim that there are Government departments that are actively monitoring social media platforms with a view to taking down politically dissenting views. For the avoidance of any doubt, the writer makes no comment on the accuracy of the allegations made in the report referred to.
The claim made is that the Government departments involved are labelling any political dissent as misinformation, whether such ‘information’. Assuming that the report is correct in terms of the existence of such departments, would such censorship be legal?
Whilst the Government is considering whether to implement a replacement for the Human Rights Act until a new statute is brought into force, the Human Rights Act stands. The Human Rights Act bestows the rights detailed in the European Convention on Human Rights (ECHR) on citizens of the UK. These rights are intended to be binding on any Government body. Clearly, a Government department monitoring dissenting opinions would be subject to the ECHR rights and any citizen could issue legal proceedings against the offending Government department if they felt their ECHR rights had been breached.
The relevant ECHR right in the current context would be Article 10, which is set out below:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”
Accordingly, citizens of the UK have the right to express themselves as they see fit. Such a right however is not absolute. By way of an example, there are tensions between an individual’s right to freedom of expression and another individual’s right to private and family life when it comes to defamatory comments posted online. In such cases, the Courts have to conduct a balancing exercise between the competing rights.
In respect of the right to freedom of expression in the current context, it is important to consider the second paragraph in Article 10 of the ECHR, which states:
“2. 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.”
It may be the case that the Government would rely upon such a provision, although to a point the implication of paragraph 2 is that there must be a formal statute brought into force to deal with such a restriction in the Article 10 right.
It will be interesting to see if the report published by Big Brother Watch results in formal proceedings being instituted against the Government or whether a formal investigation will follow into such departments and what the outcome will be.
How can Nelsons help?
Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
Contact us