Feel free to be sarcastic, to lampoon and to be disrespectful

Geraldine Swanton

The High Court concluded on 3 May 2012 that the decision of the Standards Committee for Pembrokeshire County Council to censure a local councillor, Lewis Calver, for comments posted by him on his blog was an unjustified interference with his right to freedom of expression. The comments were critical of the local Community Council and of individual councillors and were characterised as “sarcastic, lampooning and disrespectful, rather than personal abuse”.

Councillors’ conduct is regulated by the Local Government Act 2000 by means of standards committees charged with the task of promoting and maintaining high standards of conduct. The code of conduct which applied to Lewis Calver required councillors to refrain from conduct which could reasonably be regarded as bringing their office or authority into disrepute. Further, when discharging the role of councillor, they are required to show respect and consideration for others. The Standard Committee concluded that Lewis Calver’s blog comments breached both limbs of the Code of Conduct.

It is interesting to note that the judge not only considered the right to freedom of expression under the European Convention on Human Rights (ECHR), but also the UK’s own common-law principles, which pre-existed the incorporation of the ECHR into our domestic legislation. For critics of the Human Rights Act, it is apposite to note that the common law took a very cautious approach to placing restrictions on freedom of expression. The implication of the common law was that freedom of expression cannot be overridden by general or ambiguous words, such as those contained in the Code of Conduct applicable to Lewis Calver.

The challenge for the court was the need to balance Lewis Calver’s exercise of the right to freedom of expression and the public interest in such freedom, with the public interest in proper standards of conduct of members of local authorities, which are not easily commensurable. The more egregious the conduct, the easier it is for a court to conduct such a balancing exercise and to conclude that an interference with the right was justified.

The court concluded that the balance lay in favour of freedom of expression in this case. This conclusion was fact sensitive and influenced by the recognition of an enhanced protection for freedom of expression in the political sphere. That involves both a higher level of protection for statements made by politicians in their public capacity and the expectation that politicians acting in that public capacity will be subjected to close scrutiny and, as a result, should possess a “thicker skin and greater tolerance than ordinary members of the public”.

Notwithstanding the context of this decision and the fact that students do not have the enhanced protection afforded to politicians, there are important lessons for institutions. While it is entirely appropriate for institutions to seek to regulate their communities and to discipline students for conduct which adversely affects those communities, it is not a licence to censor all intemperate or shocking statements made via social or other media.

The principles by which institutions should be guided in policing student conduct (written or oral) are as follows:

The right to freedom of expression:

  • is the pre-requisite for participation in a democratic society

  • includes the freedom to receive and impart information and ideas without interference by institutions, except on the limited grounds set out in the right (e.g. to prevent disorder/crime, to protect the rights of others)

  • applies not only to information and ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that shock or disturb

  • enjoys special protection and therefore should be interfered with as a last resort only, if there are clear and justifiable reasons for doing so

  • is not a licence to act outside of the law by engaging in harassment, incitement to violence or discrimination.

Geraldine Swanton
Senior Associate Solicitor Education Team
For and on behalf of SGH Martineau LLP
DD:
0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E:
geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

From → General Interest

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