The United States is a unique being in that it was one of the first countries to set out all the rights of its citizens in one document. As has been covered in another article, while the United States has a single document for its Constitution, rights in the United Kindgom are governed by several such documents, from the Magna Carta to Article 10 of the European Convention. This document guarantees the freedom of expression, but this freedom (like many) is not absolute.
Much of the law governing free expression in the United Kingdom comes from the common law, that body of statutes and cases that prescribe negative rights, as well as giving exceptions to those rights. Negative rights, simply put, are ones that limit government action. Under the First Amendment of the United States Constitution, the text states that “Congress shall make no law” that prevents free exercise of religion, speech, press, assembly, etc.
However, as noted, exceptions do exist. One such notable exception is that the government can still place some restrictions on speech that is critical of its actions or the monarchy, despite the lack of successful prosecutions in the last few decades. Much like the United States, a notable exception is that speech that threatening or abusive with an aim to breach the peace is not protected. Arrest or civil action (i.e., lawsuits) can be taken on the speaker. Unlike the United States, speech that is racist in nature (even if it does not incite violence towards an ethnic or racial group) can also be subject to criminal prosecution.
With the Racial and Religious Hatred Act of 2006, this exception was extended to religious groups and faced controversy until an amendment introduced language that specified such speech against a religious group had to incite violence against that group. The effect of the amendment was to preserve the freedom to discuss and disagree with religious principles of different faiths while protecting religious groups from harm.
Blasphemy laws were another method of censorship in the United Kingdom that at times were controversially more restrictive than in America. While the First Amendment in the United States prohibits the government from establishing a national religion, the Church of England has been the state-sponsored religion of the United Kingdom since Henry VIII established it. Since the 16th Century, blasphemy against Christianity was considered an offense at common law. Any work or action critical of the Church or Christian beliefs could have been prosecuted under the law, either by the government or through a private prosecution. The last case was brought in 1977 by notorious censorship guru Mary Whitehouse against Gay News for its publication of a poem depicting Jesus Christ engaging in homosexual relationships. The offence was later abolished in 2008.
Defamation, or libel cases as they are known the England, are also much less forgiving to defendants. There exists a high burden of proof than in the United States, and until the last few years, journalists in the United Kingdom could still face stiff civil penalties for reporting information that turned out to be false. Whereas in the United States, libel against a public figure required evidence of the publisher’s intention to communicate information it knew was false, British news organizations could have been prosecuted even if the information was published with the mistaken impression that it was true.
In 2006, the case of Jameel v. Wall Street Journal revived the “Reynolds” defence in the House of Lords, granting journalism taken in the public interest protection from libel suits where the journalist believed the information was fair at the time of publication. The Defamation Act of 2013 went a long way towards strengthening the protections for speech, curtailing the scope for claims and requiring evidence of actual harm to the plaintiff. In effect as of January 1, 2014, it will be interesting to see how another defamation case will fair under the new law.
Thus, while free expression in the United Kingdom has had a long road to strengthening the protections of citizens against the government, there are still notable differences between its laws and those of the United States.