United Kingdom (England and Wales): Responding to ‘hate speech’

The report deals with the United Kingdom (UK), with focus on England and Wales. 

Criminal law has not been used against a media outlet for many years. It has never been used for engaging in hate speech in relation to any person or group of persons on the basis of a protected characteristic.

There was an increase of hate speech against migrants and refugees around the Brexit campaign. Contributions to intolerance came from UKIP, but also from prime minister Theresa May. Prejudice also appears in media, both legacy media (especially tabloids) and new ones like social media. The murder of member of parliament Jo Cox has also led to calls for a reform of legal provisions around hate speech.

The United Kingdom is a member of several relevant international treaties: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the European Convention on Human Rights (ECHR). The Charter of Fundamental Rights of the European Union also applies.

The UK has no written Constitution: the first statute protecting everyone’s freedom of expression is the Human Rights Act 1998 (that came into force in 2000), that incorporated the ECHR in national law. The Bill of Rights 1689 protected only freedom of speech of Members of Parliament. English anti-discrimination law has developed since the 1960s with statutes concerning race relations, sex, and disability discrimination, but it remains a patchwork, with the Human Rights Act achieving some unification. The Equality Act 2010 codified into one piece of primary legislation protections based on age, disability, gender identity, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

England and Wales have no criminal code: criminal law is made of different acts of parliament and the common law. Some relevant offences are included in the Public Order Act 1986:

• using threatening, abusive, or insulting language with the intention of stirring up racial hatred or which is likely to stir up racial hatred;
• using  threatening words, behaviours, or written material with the intention of stirring up religious hatred or hatred on the grounds of sexual orientation. This was watered down in respect of the racial hatred provision: only threatening conduct and only with the intention of stirring up racial hatred; there is no offence if it happens inside a dwelling and it is not witnessed by anyone outside;
• it is also prohibited to publish or distribute related inflammatory material;
• a section of the act explicitly protects freedom of expression, including insults of religious beliefs and proselytism;
• proceedings may only be brought by or with the consent of the Attorney General.

The Crown Prosecution Service (CPS) guidelines distinguish racist or religious incidents and racist or religious hate crimes: not all incidents are crimes, and not all crimes are prosecuted (evidence may be lacking).

There are several issues with these provisions in terms of their compliance with ICCPR:

• prohibited conducts under English law go far beyond what is required by Art 20.2 of the ICCPR ( “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”), but incitement to discrimination is not included;
• only race, religion, and sexual orientation are protected - age, disability, and others characteristics are not included;
• apart from racial hatred, the intent has to be proven.

Other offences may apply, including:

• threat or incitement to kill;
• harassment and stalking; harassment can be committed also by publication, including in the media; higher punishment if racially or religiously aggravated;
• using threatening, abusive, or insulting words or behaviours that cause, or are likely to cause, another person's harassment, alarm, or distress;
• displaying any writing, sign, or other visible representation which is threatening, abusive, or insulting within the hearing or sight of a person likely to be caused harassment, alarm, or distress, whether in a public or a private place;
• sending another person any message, letter, email, photograph, or recording which is indecent, grossly offensive, false and known or believed to be false, or which conveys a threat;
• make improper use of a public electronic communications network, such as by sending grossly offensive, indecent, obscene, menacing, or annoying phone calls, emails, or other electronic communications;
• racialist chanting at football matches;
• racially or religiously aggravated offences in cases of assault, criminal damage, public order offences, and harassment;
• increased sentences for offences which are aggravated by hostility towards the victim based upon sexual orientation, disability, or transgender identity;
• dissemination of terrorist material.

Prosecutors may only start a proceeding if a case passes the evidential test (there is enough evidence) and prosecution is required in the public interest (which is most likely the case in cases of hate speech).

In 2016, the Home Affairs Parliamentary Select Committee launched an inquiry into “Hate crime and its violent consequences”. In a report, it stated that legal provisions should be clarified and updated (most of them predate the internet).

There are no administrative hate speech offences under English law, except for regulatory framework on the media.

There are a number of civil causes of action that may apply in cases involving hate speech:

• Harassment is also a civil cause of action. It includes speech, and publication of press articles.
• Employers may be vicariously liable for harassment carried out by their employees.
• Privacy/data protection may in certain circumstances collaterally engage issues of hate speech.
• Employees are in some circumstances entitled to protection from hate speech by fellow employees. Employers may sanction workers who engage in hate speech against their colleagues and/or third parties.
• Private actions under the Equality Act 2010: prohibition of discriminatory ‘hate speech’ targeted at service/premises users or potential users. Rare.
• There is a tort of defamation but it is rather narrow

Victims rarely seek redress under these provisions. There have been calls to review the applicable legislation as it applies to social media.

The Equality and Human Rights Commission (EHRC) publishes reports and issues guidance also related to hate speech. It may also have a “duty to make enquiries” in relation to hate speech in individual cases where the facts of a case suggest that a public authority or a body exercising public functions may have committed an unlawful act or may not have complied with the Public Service Equality Duty (PSED)”. These bodies include public service media such as BBC. The EHRC occasionally produces guidance for the media on reporting on certain minorities.

The UK government has no overarching policy promoting plurality, diversity, and inclusion of minorities in media, but occasionally develops ad hoc initiatives in this respect.

The Office of Communications (Ofcom), the regulator for the communications industry (including broadcast media), has legal obligations to promote plurality, diversity, and inclusion of minorities in the media. Public service broadcasters (not only the BBC) are required to observe the (Ofcom) Broadcasting Code. Some elements of the Rabat Plan of Action are included. Ofcom publishes its decisions and can impose sanctions. A limited number of breaches were found. The BBC has amongst its purposes to represent diversity.

Press is self-regulated. A royal charter provides a framework, but its reach is limited and there is no requirement related to diversity or representation of minorities. The two press regulators, IPSO and IMPRESS, created codes of conduct.

There is no general regulation relating to hate speech on online platforms, such as YouTube and Facebook. There have been regular calls by politicians for introducing dedicated legislation on content on social media but the UK government does not appear to be in favour of statutory regulation.

The Advertising Standards Authority (ASA), UK’s independent regulator of advertising across all media, including broadcast and print media, makes decisions relevant to hate speech. The UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (CAP Code) specifically refers to protected characteristics.