Senior Lecturer and Programme Leader of the Distance Learning LLB at Middlesex University Mariette Jones questions whether curbing free speech would impact on radicalisation.
It seems as if there is not a week that goes by without ISIS and the events in Iraq and Syria making headlines in the press, each new atrocity committed by the so-called ‘Islamic’ State seemingly calculated to cause the maximum level of shock and disgust.
However, what ought to make us pause and seriously reflect is the fact that so many young Britons feel the urge to join this organisation. Recently three young British girls, by all accounts straight ‘A’ students and clearly much beloved by their family, made the long and arduous journey to Syria. It has been said that young Muslims feel alienated, that rising intolerance and the level of discourse feed into decisions to abandon the West and head to the certainty of a single narrative brooking no dissent. Is this true? Should we as a society search our souls and put a guard before our mouths?
Thomas Jefferson famously said that freedom of expression “cannot be limited without being lost”, an idea which is enshrined and protected in the First Amendment to the Constitution of the USA, where freedom of speech is probably protected more than anywhere else on earth. Salman Rushdie reiterated the belief, held by many, that limiting freedom of expression by necessity negates it. In the UK too, freedom of expression is given statutory protection in Section 12 of the Human Rights Act 1998.
And yet freedom of speech is not absolute, anywhere, not even in the USA. Erica Howard explained that the law seeks to finely balance competing rights when it comes to freedom of expression: Whereas there is no right not to be insulted, likewise freedom of speech is not absolute. For example, it does not extend to including hate speech. There are also concerns being raised about whether or not gratuitously offensive speech should be accorded protection under the right to freedom of expression.
The question then is, could moderating the level of discourse in Britain have helped to prevent the decision by three teenagers to join an estimated 60 young women so far in leaving their homes and making the journey to Syria to join ISIS?
It is submitted that this would be a wrong direction to take. Contrary to what many people would think, in Britain freedom of expression is curtailed to a larger extent than in many other democracies. The recent hard-won reform of English libel law is a case in point: the Defamation Act 2013 was enacted, to a large extent, to address the accepted fact that English defamation law had been stifling free expression in the following ways: the way in which defamation claims were structured was very claimant friendly – there was a reverse burden of proof meaning that unlike any other civil trial where “he who avers has to prove”, in defamation claims it was mostly up to the defendant to disprove the claim. Then there was no legal aid for either claimants or defendants, meaning that pursuing or defending defamation actions was largely something that only the rich and powerful could do. This also led to the so-called ‘chilling effect’, which meant that the mere threat of a libel action was enough in many instances to stifle dissent. See, for example ‘The Libel Survivor’ (a free copy can be accessed here).
What is more, all of this in turn led to Britain becoming known as a prime destination for ‘libel tourists’ – claimants who instituted their cases in this jurisdiction rather than in other more obvious forums, because of the favourable treatment of libel claimants. In Bin Mahfouz v Ehrenfeld  a wealthy Arab businessman successfully sued an American academic, Dr Rachel Ehrenfeld, in London for defamatory statements about him in her book entitled Funding Evil. Only 23 copies of her book had been sold in the UK, and it was pointed out that the claimant chose England rather than the US to sue, as the latter’s constitutional protection of freedom of speech (see below) effectively cancelled his suit’s prospect of success. Likewise in Jameel v Dow Jones & Co Inc , the claimant, a Saudi national, was allowed to pursue defamation proceedings in England against the publisher of the Wall Street Journal based on an article it posted on its website in the USA, even though very few (as few as five) people in England had accessed the article. In both these instances the statements alleged that the claimants had been funding Al Qaeda. One could say that Britain, or British libel courts, became a preferential destination for international claimants to silence critique. To many it therefore came as no surprise when the European Parliament in May 2012 passed a resolution naming England and Wales “the most claimant-friendly in the world”.
The Defamation Act 2013 goes a long way towards redressing the balance in favour of freedom of speech: forum shopping as described above is curtailed by requiring claimants to be domiciled in this country, or at least to be able to show that there is no other more suitable jurisdiction for their claim (section 9). Increased protection is given to scientific and academic publications, honest opinions and publications on matters of public interest are most clearly intended to promote vigorous free speech. Even so, most commentators so far seem to think that this does not go far enough (see for example Mullis and Scott, 2012).
And defamation law is but one part of the overall picture of freedom of expression and its limits. We should also remember that this is the country where secret soundings are now the order of the day, and where a defendant in a claim may face the uphill battle of having to defend himself against an unknown claimant relying on material that is held in secret. So we could argue that what is needed is not more silence, more secrecy, but more openness and more freedom of expression.
Compared to countries such as France and Denmark, the UK could be seen as having been remarkably constrained in its handling of potentially offensive material – the very limited publication of the Charlie Hebdo cartoon in the UK is a good example. Yes, we do have a gutter press. Yes, they do sometimes say offensive things. Ought they to exercise some self-restraint? Undoubtedly. But silencing dissent because of fear would be a step too far.