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At What Price Freedom?

Legislation allowing freedom of expression and opinion has been seen, in the modern era, as a sacred right baked into the fabric of democratic societies. Yet, there seems to always be debate about how far these freedoms should stretch. Should they encompass the legalisation of the expression of views that most people deem as immoral, harmful or even offensive? Who should be allowed to police these views? The recent freezing of Mr Farage’s account, motivated by concerns around his expressed political and social views, has brought these worries about the powers that governments and companies wield into the spotlight. So at what point should freedom end and legislation start? In other words, at what price freedom?

The Article 10 of the 1998 United Kingdom Human Rights Act states that:

The exercise of these freedoms (of expression), 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.

This provision on freedom of expression has gained an interesting spotlight over the last few years, catalysed by the changes in early January 2022 to the long-expected Online Safety Bill. The bill, initially drafted 13 May 2021, established, among other things, legal duties of care for large user-to-user service providers towards users, partnered with heavy fines for non-compliance. One of these was that content deemed by the government to be ‘legal but harmful’, such as forms of hate-speech or material promoting self-harm, could be managed by service providers. However, after complaints concerning the consequences of a government sanctioned definition of ‘harm’ and the possible incentivisation to remove more and more content, the proverbial slippery-slope, the Bill was altered by 18 January 2023. The changes made to the bill eliminated the provision for category 1 services (the largest user-to-user services) to manage ‘legal but harmful’ content on their sites; removed in favour of a new ‘triple-shield’ approach, which grants more power to the user to filter out harmful content themselves (see here for more information), a move away from the controversial over-policing of online content that the Bill initially set out to establish.

In terms of freedom of expression legislation, a similar yet more worrying concern could be raised, due to the perceived possibility for the individual to be subject to restrictions on their freedom of expression on the grounds of ‘public morals’, namely, a restriction on ‘legal but immoral’ views or behaviour. It is important to note that this phrase ‘protection of morals’ is not to be linked with the legal concept of ‘moral rights’ within UK copyright law. ‘Protection of morals’, in this instance, is concerned with morality and normativity within UK legislation. There is little concern over this phrase in UK law, and yet censorship on the grounds of immorality seems far more imprecise and vague than on the grounds of harm. For one, using moral judgements within legislation presumes the existence of some moral universality, which is highly contended given the huge diversity of fundamental moral beliefs and potential concerns over moral imperialism. As well as this, moral policing by the government could be perceived as touching at the chilling Orwellian conception of ‘groupthink’, or a segue into a possible dictatorial condemnation of anything against the authorities. For concerns such as this, to name a few, this phrase of ‘protecting morals’ could be cause for more concern than ‘legal but harmful’ content online.

But is this just a case of philosophical nit-picking? The law needs to be pragmatic to a certain degree, and accepting a degree of moral universalism for establishing base-line legislation such as the convention on Human Rights is valid and, for some, reasonable. Furthermore, it seems unlikely that the government could start establishing a newly fabricated conception of morality against the will of the public. However, with the recent news of Mr Farage’s account being closed by Coutts on grounds seemingly related to his controversial expressions of opinion, justification on the grounds of ‘protection of morals’ in UK law has and will become more prevalent and therefore concerning.

In Mr Farage’s case, large corporations and the government are dictating through social or economic sanctions a brand of morality that they expect everyone to accept, the so-called ‘cancel culture’.. In early stages this appears to be sensible and in some cases widely accepted, such as of the cancelling of Andrew Tate’s social media accounts, however it does raise concerns about the use of this justification. The lack of notification and reasoning given by Coutts before the closure of Mr Farage’s account, as well as the smokescreen of not meeting financial requirements they may have put up, demonstrates how worryingly easy it is for corporations to enact this ‘protection of morals’ legislation with no power given to the subject concerned. The window for freedom of expression is drawing and the phrase within UK legislation about the ‘protection of morality’ is the arm closing it.

So what should be done about this? What safeguards can be in place within law that protect the public from harmful and illegal content, without violating their right to freedom of expression? At what price freedom?


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