THE IMPACT OF ANTI -TERRORISM LAW ON THE FREEDOM OF EXPRESSION IN THE UK

1. Introduction

The objectives of anti -terrorism laws are to tackled the various sources of political violence in order to secure national security, public safety and public order. This report covers certain aspects of anti-terrorism laws in the UK necessary to understand whether they are able to meet its objective not at the cost of basic human rights, particularly the right to freedom of expression. This report will cover key aspects of the law covering what activities are prohibited or are to be prevented in order to curb terrorist activities. While doing so, it will address the key issue of whether the existing anti-terror legal framework balances the right to freedom of expression on individuals and institutions.

This report will addressed the effectiveness of the existing legal framework in regard to implementing legal provisions to prevent breach of the right to the freedom in question. This report has addressesed the anti-terror legal terms, such as direct or indirect encouragement of terrorist activities, terrorist publication, and concept of proportionality to understand the extent and the type of impact that the laws have on freedom of expression. This report has also addressed the scope of discretion tendered to the state machinery by the laws and the issue of selective application of the laws and its social impact in order to understand the impact the state anti-terror measures have on the freedom of expression.

Based on this analysis, this report provides its finding as a part of its conclusion. The conclusion of this report provides a summary of the findings of the report and appropriate recommendations that may be used to inform future government and other stakeholders’ strategies in regard to reforming policies around furthering the objectives of the anti-terror laws while securing the right to freedom of expression.

2. About Anti -Terrorism Law and the Freedom of Expression

The UK has a series of anti-terrorism laws and other laws that address terrorist activities. They include the following legislations:

1. The Terrorism Act 2000
2. The Anti-terrorism, Crime and Security Act 2001
3. The Terrorism Act 2006
4. The Counter-Terrorism Act 2008
5. The Coroners and Justice Act 2009
6. The Justice and Security Act 2013
7. The Counter-Terrorism and Security Act 2015
8. The Counter-Terrorism and Border Security Act 2019

Anti-terrorism laws are to be particularly tailored to meet varied sources of political violence. Legislative responses are stated to significantly prevent terrorism. For this to occur, a rational policy making is needed to provide a form of scrutiny against the determination of the effectiveness or impact of any anti-terrorism laws. This report will address whether the available anti-terrorism laws conform to this principle with respect to the rights of the citizens of the freedom of expression.

The right to freedom of expression is provided in the Human Rights Act 1998 (HRA 1998). HRA 1998 has incorporated the European Convention on Human Rights (ECHR). ECHR, Article 10 provides for freedom of expression. An individual is entitled to receive and share ideas and hold opinions without interference from the state. This right entails corresponding duties, which are subject to legal limitation and formalities in the interest of national security, public safety, prevention of crime or civil disorder, and prevention of disclosure of confidential information amongst other limitations.

2.1. Key Issues

In the light of the existing legal framework, this report will address the following main issue:

Whether existing anti-terrorism legal framework balances citizens’ right to freedom of expression?

This report will determine the impact of the anti-terrorism laws on the freedom of expression in order to address whether any kind of restriction imposed through the implementation of the laws could come under the scope of to the legal limitation and formalities provided under HRA 1998 and ECHR.

3. Mode of research

The research report was prepared by using a desk-based research. The report was written after having reviewed data from secondary sources, including written records from the books and journals, policies, laws, and other relevant online sources.

From a research methodology perspective, this research used qualitative method. The method employed is more or less deductive in nature, which is one of approaches of qualitative method. Thus, this report was prepared using a top-down approach by analysing existing data and arriving at a particular conclusion.

The research involved in this report explored aspects of anti-terror laws against individuals’ right to freedom of expression. It addressed concerns governing freedom of expression against the objectives of the anti-terrorism laws. It also addressed concerns of whether the restriction by anti-terrorism laws against the freedom is justifiable in order to determine the kind of impact such laws have on the freedom of expression. Thus, the research employed a deductive approach to answer the research questions.

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1. Andrew Lynch, ‘Legislating anti-terrorism: observations on form and process’ in Victor V. Ramraj, Michael Hor, Kent Roach and George Williams, Global Anti-Terrorism Law and Policy (Cambridge University Press 2012).
2. Phyllis G. Supino and Jeffrey S. Borer, Principles of Research Methodology: A Guide for Clinical Investigators (Springer 2012).
3. R Kumar, Research Methodology: A Step-by-Step Guide for Beginners (SAGE Publications Inc .2010).
4. A Bryman and M Hardy, The Handbook of Data Analysis (Sage Publications Inc. 2009).

4. Whether Anti -Terrorism Law balances citizens’ rights to freedom of expression?

Countries, including the UK, have introduced legislations that place restriction of the freedom of expression. Such restriction is justified for the purpose of preserving safety and security of the citizens and the country. It is observed that freedom of expression along with the right to liberty is the most affected rights. For instance, the right to liberty and freedom from arbitrary arrest or detention has been observed as the most frequent casualty in context to the act of state against anti-terrorist activities. This could be demonstrated by when the UK derogated its commitments arising out of the ICCPR treaty when responding to bombing campaign and terrorist activities of Irish terrorist groups or in actions taken after the September 11, 2001 attack. Such derogation will be justified under ICCPR’s claw-back clauses that do not give absolute right to freedom of expression and provides for legally permitted restrictions, such as public order and national security.

One of the reasons that the freedom of expression is mostly affected may lie in the interpretation and implementation of the anti-terror law. The Terrorism Act 2006, s1 makes “encouragement” of terrorism an offence. Encouragement covers the act of publishing statement that may directly or indirectly encourage or induce the act of committing, preparing or instigation terrorist activities. For such offence, the publisher must have intended or be reckless in respect to whether the audience or the public would be directly or indirectly encouraged by what they published. The act of encouragement also included praising an event, whether it had occurred or occurred in a different country. This Act would require the public to have reasonably expectation to emulate the glorified content in the statement. The terms employed in this Act draws a wide coverage of statements that could be punishable under this Act. The addition of the element of recklessness may punish anybody who might not have foreseen the impact of their statement that it could encourage a terrorist activity. Similarly, section 2 of the Act 2006 provides a wide term, “terrorist publication”. This term is not clearly defined but left it to be determined at the time of the conduct considering its contents and surrounding circumstances. It also covers internet activities. Moreover, the burden of proving that any statement expressed is not in violation of the law is left to the publisher. It is definitely the main problem in this Act 2006 that the specific terms are not defined clearly and they apply to a broad range of activities, which could be proved to be an offence in case the alleged conduct is reckless and directly or indirectly encourages terrorist activities. Thus, this particular Act 2006 seems to have failed to find the strong link between expression of thoughts and the offence of terrorist activities.

Turner appropriately observed that the wide discretion given to state authorities is not proportionate to their responsibilities in protection human rights, including the freedom of expression. This may cause real concerns regarding the freedom of expression. The use of the term “proportionality’ under ECHR, Article 10 encourages such concerns. This test may not be as strong as the test of strict scrutiny as employed by the US. The legislation in itself contrasts its provision demonstrated by the wide discretion with less clarity on defining the prohibitive language used. This contradicts the principle set out by the ECtHR. ECtHR held that the manner of exercise and the scope of the discretion must also highlight enough clarity with regard to the legitimate aim in question in order to secure adequate protection of individuals against arbitrary interference. The language used in anti-terror laws seems to cover a wide range of categories of expression, which could bring anybody under their radar if the state determines so that they incite terrorism. The Terrorism Act 2006 criminalises “encouragement of terrorism” which includes making statements that glorify terrorist acts. This creates a wide coverage of bringing an individual exercising his or her right to free speech could also be brought under the laws. It may hugely impact the freedom of expression. The issue is further aggravated by the wider definition being given to terrorism and extremism. In special reference is that of Section 26 of the Counter Terrorism and Security Act 2015, which aims to prevent people from being drawn to terrorism. This is faced with opposition from educational institutions, which belief that the law will intrude on academic freedom, especially as it will allegedly discriminate targeted Muslim students, legitimise Islamophobia and stifle campus freedom of speech and activism. Such law and policies created a notion of ‘suspect communities’ exposing the gaps in government policies

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1. Ian Cram, Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda (Springer Berlin Heidelberg 2009).
2. Francesca Galli, ‘Freedom of thought or ‘though-crimes’? Counter-terrorism and freedom of expression’ in Aniceto Masferrer and Clive Walker, Counter-terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries: Defence of the State (Edward Elgar 2013).
3. Ibid.

Freedom of expression connotates a justifiable restriction on the right of an individual to express their views. The law as such seems to focus more on this justifiable restriction in the interest of public order, national security and many such security reasons. The reason may lie with the increase prominence of the Internet and its expanding use in activities related to terrorism. Therefore, there is more of legislative focus on concepts of incitement, glorification and dissemination. Such focus may be legally justifiable. However, what position does it place the right to freedom of expression? It seems the restriction on this freedom is selective. The experience of the Muslim communities in Britain since 11 September 2001 attack proofs this. It has been observed that the entire communities of Muslims were targeted as being the “evil” or the “fifth column” enemy by the media, security services, politicians and the criminal justice system. Such treatment was also seen in anti-terrorist measures. This could be stated to be one flaw in the terrorism legislation, which did not provide for securing such collateral damage. Such selective restriction does not recognise the recklessness or intended speech and expression by the actors mentioned here (even though the Public Order Act 1986, s4 could govern such offence) when the Act 2006 gives these terms a wide interpretation. Miller and Sabir, thus, observe that encouragement or dissemination of terrorist publication is not subject to any test to determine encouragement, which again is given a wide definition when the Act 2006 provides for direct and indirect encouragement. Thus, the public would be expose to higher risk of being guilty of the offence when they do not realise their statements fall under this category.

1. Ian Turner, ‘Limits to terror speech in the UK and USA: balancing freedom of expression with national security’ (2020) 2(1) Amicus Curiae 201-232.
2. Wingrove v. United Kingdom, 25 November 1996, Application No. 17419/90 (European Court of Human Rights), para. 40.
3. Joanna Gilmore, ‘Teaching terrorism: the impact of the Counter-Terrorism and Security Act 2015 on academic freedom’ (2017) 51(4) The Law Teacher 515-524.
4. Clemens Nathan Research Centre, Freedom of Expression and the Media (Martinus Nijhoff Publishers 2012).
5. Daragh Murray, ‘Freedom of Expression, Counter-terrorism and the Internet in Light of the UK Terrorist Act 2006 and the Jurisprudence of the European Court of Human Rights’ (2009) 27(3) Netherlands Quarterly of Human Rights 331-360.
6. Scott Poynting and Victoria Mason, ‘”Tolerance, freedom, justice and peace”?: Britain, Australia and anti-Muslim racism since 11 September 2001’ (2006) 27(4) Journal of intercultural studies 365-391.

There is a certain standard followed by the state that could determine whether an expression, statement or a speech could be acceptable to the authorities in accordance with the objective of anti-terror laws. Action taken in case of unacceptability must be proportionate to the expression, statement or a speech made. The practice of setting such standard of acceptability could be found in the Prevent programme and the COUNTER strategy. They are part of the government’s response to radicalisation of persons and mitigating the risk of exposing people to international terrorism. They aim to deter elements that would facilitate terrorism and encourage others towards terrorism. They were developed as a non-legally binding guidance. However, Prevent is able to impose statutory duty on public institutions, including universities, prisons and schools to put safeguard measures in place. Accordingly, universities can be prevented from allowing visiting speakers from expression based on the risk of radicalisation. They can place policies that can derogate freedom of speech and also academic freedom.

The impact of Prevent could be seen in the case of R (on the application of Salman BUTT. This case concerned a statutory duty under Prevent imposed on universities to respect the need to prevent people from being drawn into terrorism. This general duty is also provided under the Counter Terrorism and Security Act 2015, 26 imposed on specified authorities. Salman Butt regularly visited the UK since 1990 on public lecture tours. In 2010, before he was due to arrive in the country on a lecture tour, the Secretary of State excluded Mr. Butt him and also revoked his visa on the ground that his earlier statements indicated supported terrorists, such as Osama Bin Laden, which breached the unacceptable behaviours policy. His exclusion was to preserve national security and public order. The Court of Appeal found the Secretary of State breached his duty to disseminate guidance that could sufficiently inform decision-maker in public authorities, including universities and other higher education bodies their duty to ensure free speech and also prevent people being drawn into terrorism.

Prevent is also extended to the concept of non-violent extremism, which is basically holding anti-British values. Such extended and wider discretion of applying terror laws would enable the state in intrusive prohibition of freedom of expression against anybody that has support for any proscribed bodies, or viewing Internet based materials. Making a speaker criminally culpable requires that at the time the words were spoken in that particular circumstance, they should have had foreseen that it would incite an audience to commit an offence. However, the current anti-terror regime adopts a strict approach by making the speaker criminally liable irrespective of whether the audience acted on it or not. This approach lacks reasonable consideration of the interest of the speaker in terms of his freedom of expression and that of the audience’s right to receive information. This goes against the very nature of the right to freedom of receiving and sharing information. What is concerning, to reiterate too, is that the laws and policies are selective in its implementing approach targeting a particular community or a category of the public. The law should be able to lay down a clear demarcation between free speech and hate speech or expression that is directly linked with terrorist activities.

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1. David Miller and Rizwaan Sabir, ‘Counter-terrorism as counterinsurgency in the UK ‘war on terror’’ in Scott Poynting and David Whyte, Counter-Terrorism and State Political Violence: The 'war on Terror' as Terror (Routledge 2012).
2. Ian Cram, ‘Countering terrorism through limits on inciteful speech’ in Ian Cram, Extremism, Free Speech and Counter-Terrorism Law and Policy (Routledge 2019).
3. Ibid.
4. R (on the application of Salman BUTT) v THE SECRETARY OF STATE FOR THE HOME [2019] EWCA Civ 256.
5. Ibid.
6. Ian Cram, ‘Countering terrorism through limits on inciteful speech’ in Ian Cram, Extremism, Free Speech and Counter-Terrorism Law and Policy (Routledge 2019).

The UK anti-terror laws, as observed here, seem to have used impactful terminology in a general sense. The earlier paragraphs on “direct or indirectly encouragement” “publication of terrorist materials” demonstrate this statement. This appears to contradict the approach of the Johannesburg Principles set out in Principle 6, which states makes an expression a threat to national security is only where a speech is intended to incite imminent violence. It requires establishing a direct and immediate connection between that expression and the likelihood or occurrence of the violence. Thus, ECtHR held that that a norm cannot be treated a law if it lack sufficient precision that enables citizens regulate their conduct and be able to reasonably foresee the consequences of a given situation. Likewise, a restriction is not necessary if it is not for a “pressing social need”. Considering these principles, will it be justified to state that the wide discretion and ability to interpret and apply the legal prohibitive terms used in the laws, such as “encouragement of terrorism” or “terrorist publication” without having any clarity or the requirement of sufficiency to establish a direct and intended link with expression and terrorist activity cannot be treated a law in real sense? Cases like Salman BUTT represent the gap in the law itself and the law and its implementation. The wide discretion of interpretation also represents a non-uniform approach to implement the law, which would expose individuals’ right to freedom of expression to great risk.

5. Conclusion and recommendation

This report has highlighted that the current anti-terror law regime is focussed on the sources of terrorist activities beyond what is necessary. Thus, the question of whether they balance citizens’ right to freedom of expression could be answer in negative. The root of this result stems from the very provision of the laws. Derogation of the basic human rights and the freedom of expression must be justifiable with legislative response that is clear and can establish a direct link between the expression and the occurrence or likely occurrence of a terrorist activity. Terms such as direct or indirect “encouragement of terrorism”, “publication of terrorist materials”, the element of recklessness or placing the burden on people to prove otherwise, when read together transfer great power to the state and lesser option of defence to the people. The priority must have been placed on strict scrutiny of the implementation by authorities rather than strict culpability placed on the individuals.

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1. Ibid.
2. Sunday Times v United Kingdom, 26 April 1979, Application No. 6538/74, para 49.
3. Handyside v the United Kingdom, 7 December 1976, Application no. 5493/72, para. 48.
4. R (on the application of Salman BUTT) v THE SECRETARY OF STATE FOR THE HOME [2019] EWCA Civ 256.

The focus on restriction is not proportionate to the freedom of expression stipulated in the law. The result may be, cited as an example, the selective target on Muslim community or selective interpretation or implementation of the law. The absence of tests to determine the key legal terms, which make an expression linked with terrorist activities, is the major concern against anti-terror laws. Considering the current social structure comprising of different communities, the current law must accommodate this structure in order to prevent abuse of the law. Programmes like Prevent must make changes accordingly so as to further academic progress.

It is understandable at the same time that the rise of penetration of terrorist activities and propaganda is due to the increase prominence of the Internet. This may be also cited as the reason for the larger focus of the law on restriction than on the freedom of expression. However, at the same time, the more complex the activities of terrorist network are, the more robust the legal system must be. A combination of legislative efforts and active judiciary may play the part in securing active standards to assess legislative impacts on freedom of expression.

Legislation

The Counter Terrorism and Security Act 2015

The Terrorism Act 2006

Cases

• Handyside v the United Kingdom, 7 December 1976, Application no. 5493/72.
• R (on the application of Salman BUTT) v THE SECRETARY OF STATE FOR THE HOME [2019] EWCA Civ 256
• R (on the application of Salman BUTT) v THE SECRETARY OF STATE FOR THE HOME [2019] EWCA Civ 256.
• Sunday Times v United Kingdom, 26 April 1979, Application No. 6538/74.
• Wingrove v. United Kingdom, 25 November 1996, Application No. 17419/90 (European Court of Human Rights).

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Bibliography

Books

• Bryman A and M Hardy, The Handbook of Data Analysis (Sage Publications Inc. 2009).
• Cram I, Terror and the War on Dissent: Freedom of Expression in the Age of Al-Qaeda (Springer Berlin Heidelberg 2009).
• Cram I, ‘Countering terrorism through limits on inciteful speech’ in Ian Cram, Extremism, Free Speech and Counter-Terrorism Law and Policy (Routledge 2019).
• Clemens Nathan Research Centre, Freedom of Expression and the Media (Martinus Nijhoff Publishers 2012).
• Kent Roach and George Williams, Global Anti-Terrorism Law and Policy (Cambridge University Press 2012).
• Kumar R, Research Methodology: A Step-by-Step Guide for Beginners (SAGE Publications Inc .2010).
• Galli F, ‘Freedom of thought or ‘though-crimes’? Counter-terrorism and freedom of expression’ in Aniceto Masferrer and Clive Walker, Counter-terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries: Defence of the State (Edward Elgar 2013).
• Lynch A, ‘Legislating anti-terrorism: observations on form and process’ in Victor V. Ramraj, Michael Hor,
• Supino PG and Jeffrey S. Borer, Principles of Research Methodology: A Guide for Clinical Investigators (Springer 2012).
• Miller D and Rizwaan Sabir, ‘Counter-terrorism as counterinsurgency in the UK ‘war on terror’’ in Scott Poynting and David Whyte, Counter-Terrorism and State Political Violence: The 'war on Terror' as Terror (Routledge 2012).

Journals

• Gilmore J, ‘Teaching terrorism: the impact of the Counter-Terrorism and Security Act 2015 on academic freedom’ (2017) 51(4) The Law Teacher 515-524.
• Murray D, ‘Freedom of Expression, Counter-terrorism and the Internet in Light of the UK Terrorist Act 2006 and the Jurisprudence of the European Court of Human Rights’ (2009) 27(3) Netherlands Quarterly of Human Rights 331-360.
• Poynting S and Victoria Mason, ‘”Tolerance, freedom, justice and peace”?: Britain, Australia and anti-Muslim racism since 11 September 2001’ (2006) 27(4) Journal of intercultural studies 365-391.
• Turner I, ‘Limits to terror speech in the UK and USA: balancing freedom of expression with national security’ (2020) 2(1) Amicus Curiae 201-232.