Freedom of Expression

Main Principles of Freedom of Speech 

Free speech is one of the basic freedoms which we enjoy as part of our membership of a liberal democratic society. It enables diversity and equality, and it ensures that no one’s legitimate opinions may be silenced. As the University’s policy statement outlines, “free speech is the lifeblood of a university; […] it enables the pursuit of knowledge [and] helps us approach truth”.

It is therefore important that free expression is maintained, particularly at a university dedicated to increasing our understanding of the world. Free speech will include views which we may not respect, yet we must still ensure that the person expressing those views  is not stripped of their right to freedom of expression. It may also include “views or opinions [which] ‘offend, shock or disturb’ […] as one of the ‘essential foundations of a democratic society”. 

As the Office for Students argues, “students should encounter, and be able to debate, new and discomforting ideas if they are to get the most out of higher education.”

Legal Framework

The right to free expression is one which is enshrined in law. Article 10 of the European Convention on Human Rights legislates for the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority”; this freedom was brought into English and Welsh law by the Human Rights Act 1998). More specifically to the university context, section 43 of the Education (No. 2) Act 1986 explicitly states that “reasonably practicable” steps must be taken “to ensure that freedom of speech within the law is secured for members, students and employees of [universities] and for visiting speakers”.

This means that visiting speakers must not be disinvited or barred entry to any events organised by a club using ‘Oxford University’ branding or taking place on premises belonging to the university, its constituent colleges, or Oxford SU because of their views, provided that these views are allowed within the law.

Exemptions to Freedom of Speech 

This last caveat allows that there may be some restrictions on free expression. There are exemptions to the freedom of expression laws, which allow that – so long as “reasonably practicable” steps (such as investing in security within reasonable cost) are taken to mitigate the impact of restrictive measures – some speech may be restricted. According to the EHRC, these circumstances may include:

• speech causing fear or provocation of violence
• acts intended or likely to stir up hatred on grounds of race, religion or sexual orientation
• speech amounting to a terrorism related offence, and
• causing a person harassment, alarm, or distress.

A full list of exemptions to freedom of speech provisions may be found in Annex B of the EHRC’s report. Of these, some of the most important exemptions are those which cover criminal hate speech and harassment. According to the Public Order Act (1986), offences may be committed when a speaker provokes violence or causes harassment, alarm, or distress, against those with certain protected characteristics, including race, religion, sex, and sexual orientation. Provided that reasonably practicable steps cannot be taken to avoid this, free speech may be restricted for conduct of this nature, which is often known as ‘hate speech’ - although hate speech itself is an unclear and often heavily disputed term.

Harassment

Where conduct amounts to harassment under the Equality Act 2010, freedom of expression may also be restricted. Section 26 of the Equality Act (2010) stipulates that a person causes harassment when they engage in conduct which is related to “a relevant protected characteristic” and either violates another person’s dignity on the basis of this or creates “an intimidating, hostile, degrading, humiliating or offensive environment” for this person. The University has its own broader definition of harassment. The policy on harassment states that while “vigorous academic debate will not amount to harassment when it is conducted respectfully”, it may do so when it violates another’s dignity or creates such an environment for another person.

It is important to note that the University’s policy recognises a number of ways through which harassment might be committed: it may be – for example – face to face or through electronic communication. The University’s policy also recognises that examples of harassment can include offensive comments based on protective characteristics, as well as open hostility and persistent intimidation.

Social Media 

The role of social media provides a further difficulty in ensuring that discussion is productive and does not lead to harmful consequences. The use of text to express oneself on these platforms means that the original meaning of what one is saying can easily become distorted and – either wilfully or unwilfully – misunderstood. It is therefore very important to be explicit and clear when participating in online discussion, so that what is said can be less easily distorted.

Furthermore, some people may be emboldened by the relative anonymity of social media and the lack of face-to-face discussions. This may lead to ‘trolling’, where individuals purposely bait others online by actively harassing or bullying them. This is often worsened by the fact that social media allows debate which would otherwise be internal and private to instead be shared and amplified by bad-faith actors, often leading to a ‘pile-on’, where students are intentionally targeted or harassed as a result of this amplification. This may lead to negative consequences for those who are targeted, particularly if they are targeted due to their protected characteristics.

It is important that societies are aware of the risks of this and conscious that communication should therefore be kept private where possible, such as through email or a private Facebook or WhatsApp group where the identity of each member is known and verifiable. It is important to note that the use of university digital resources to engage in harassment or abuse is in contravention of the University’s IT policy, and may lead to disciplinary action. Such behaviour online can also have legal consequences under the Malicious Communication Act 1988 or the Communications Act 2003, which outlaw electronic communications that are “grossly offensive or of an indecent, obscene or menacing character”.

The University’s guidance around the use of social media provides further advice regarding this, including the specific laws and University regulations which improper use of social media might contravene.

FREQUENTLY ASKED QUESTIONS

Why is free speech at university so important?

• Freedom of expression is a basic liberty.
• It is part of our culture of democracy and freedom.
• It leads to the creation of new ideas, enriching our understanding of the world.
• It promotes a sense of humility: we may not always be correct in our views, and so we should foster an environment in which they can  be challenged freely and openly.

Which laws promote free speech at universities?

• The Human Rights Act 1998 enshrined the ECHR’s right of free expression into English and Welsh law.
• The Education (No. 2) Act 1986 ensures that freedom of speech is specifically maintained on university premises.
• If passed, the Higher Education (Freedom of Speech) Bill 2021 would require the active promotion of free expression at universities and would impose sanctions on those who breach this duty.

In which of these scenarios may freedom of speech be constrained?

• No - If I do not share the opinions of the speaker.
• No - If what is said is offensive to my political views.
• No - If what is said is factually inaccurate.
• Yes - If the speaker engages in harassment related to a protected characteristic which creates an intimidating environment, and reasonably practicable steps cannot be taken to avoid this.
• Yes - If the speaker incites violence and reasonably practicable steps cannot be taken to avoid this.

How do I ensure that a discussion remains as productive and inclusive as it can be?

• Ensure that speakers actively correct for their prejudices when engaging in debate.
• Check that all parties to the discussion understand the intended meaning of what other people are saying.
• Take steps to make sure that debate chairs are not acting according to their unconscious biases when choosing people to speak.

How do I keep members of my society safe online?

• Be mindful that posts can be misinterpreted and amplified beyond the spaces for which they were intended.
• Remember that others taking part in online conversations are also people, even though interaction may not be face-to-face.
• Try to keep any online interactions as private and secure as possible, with only those whose identity you can verify being given access.

CASE STUDIES

Case Study 1

I have invited a speaker to speak on premises belonging to the university. After the speaker accepts the invitation, they begin making statements online which harass people on account of their race. I know that they will advocate for these views at the event which I have organised, and I have no reasonably practicable way of stopping them from doing so. Can I disinvite them from the event?

Answer: Yes. There is a substantial risk that if the speaker were to attend, they would engage in an offence of harassment under the Public Order Act (1986). The disinvitation would therefore not be an unlawful restriction upon their legal freedom of expression. 

Case Study 2

My Oxford University affiliated society has invited a guest to speak about their recent findings related to a new type of subatomic particle. The speaker has recently donated a large amount of money to a mainstream political party which is unpopular among students, and so a large protest is organised outside the venue. Should I disinvite the speaker?

Answer: No. The speaker’s political history is within the law, and so they have a right to freedom of speech under the Education (No. 2) Act 1986. You should contact the Proctors’ Deputy Marshall at [email protected] for guidance about what practical steps the society may need to take to ensure that the event can go ahead. You should complete an Events Referral Form at least seven working days before the event so that the Proctors’ Office can assess its safety.

Case Study 3

My society, which uses Oxford University branding, is organising an event which takes place on university premises. The speaker who we have invited has a history of using inflammatory language to describe the members of a religious minority group, such that any members of this religious minority who would attend the event would reasonably feel harassed and intimidated by the speaker. Should I complete an Events Referral Form?

Answer: Yes. Since the speaker has a history of making harassing comments, the Proctors must weigh up the importance of academic freedom and free expression against the likelihood that it may lead to an unsafe environment for a group with a protected characteristic. If they decide it is appropriate to, they will have the power to impose conditions upon the event, in order to ensure that the University remains a safe and inclusive environment for all its members.

Case Study 4

My society is organising an event for a few weeks time which will involve a panel of speakers debating a topic. One of the speakers has in the past incited violence against people on account of their sexual orientation, and I am worried that they might do so again at my event. I am unsure whether I need to complete an Events Referral Form, or if so how I would find the information which it requires to be completed. What should I do?

Answer: Speak to the Proctors’ Deputy Marshal by contacting them at [email protected] or by phone at 01865 287 394. They can give you informal advice on whether you must complete the Events Referral Form, as well as how it should be completed, such as by helping you with wording your answers or finding necessary information.

Case study 5

I invited a speaker to talk at an event hosted in a university building. I then found out that the speaker claims to be a member of a proscribed terrorist organisation. What should I do?

Answer: Under anti-terrorism laws, this event will not be able to go ahead. You should contact the Proctors in the first instance to seek guidance about what you should do: this will involve cancelling the event, since it is a criminal offence to arrange a meeting in the knowledge that it is to be addressed by a person who belongs to or professes to belong to a proscribed organisation.

Case Study 6

I am inviting a speaker along to an online event with a few other students at the University. They will be speaking using online video conferencing software, and the event will in no way be affiliated with the University. I am worried about the prospect of the event being an uncomfortable environment for a group with protected characteristics, due to some of the speaker’s past remarks. Do I need to complete an Events Referral Form?

Answer: No. Since the event is not affiliated with the University in any way, you are not required to complete the form. You should, however, be conscious that you may have legal duties relating to harassment and equality under laws such as the Equality Act 2010. You can always contact the Proctors’ Deputy Marshal informally for further guidance at [email protected] or by phone at 01865 287 394.