As someone born outside Malta and not indoctrinated into its particular tribal culture, I find it deeply disturbing to read the routinely ridiculous, ugly and frequently toxic commentary that passes for much political debate here. It is as if no end of effort should be expended to avoid serious adult discussion of important questions.
The routine defence for the toxic nature of much comment on social media is the oft cited right to full and unfettered freedom of expression. Despite claims to the contrary, no such unrestricted right exists and for very good reason.
Freedom of expression is recognised as a human right under article 19 of the Universal Declaration of Human Rights and is recognised in international human rights law in the International Covenant on Civil and Political Rights.
Article 19 of the latter states clearly that this human right comes with special duties and responsibilities and, as a result, may be subject to restriction.
The restrictions often cited are highly relevant in the current Maltese context. These are respect for the rights or reputations of others, for the protection of national security or of public order, public health and public morals. It must be immediately noted that national security or public order does not mean whatever a government thinks or feels on any given day and public health and morality does not simply refer to sex and religion.
The European Court of Human Rights routinely approves appropriate restrictions by governments arguing that such restrictions are fully in accordance with the European Convention of Human Rights. The convention and the court affirm that while everyone has the right to freedom of expression, that right is by no means absolute.
For many courts, freedom of expression is not a ‘superior right’ but needs to be placed in context. For example, in South Africa, the context includes the rights to dignity and privacy.
In 2011, Judge Kate O’Regan argued that “with us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression… What is clear though and must be stated is that freedom of expression does not enjoy superior status in our law.”
In times of largely uncontrolled social media use there seems to be a mistaken belief that freedom of expression gives users carte blanche to say and post whatever they wish with impunity. What is often lost in all of this is that these posts are public and users have little or no control over how they are ‘read’ or ‘understood’ or how far they travel.
For many courts, freedom of expression is not a ‘superior right’ but needs to be placed in context- Colm Regan
Commonly accepted limitations or boundaries to freedom of speech relate to libel, slander, obscenity, sedition, hatred, incitement, the right to privacy and dignity, public security and perjury. There are many others.
The basic logic behind such restrictions is simple – the harm principle – this asserts that the only reason power can be appropriately exercised over any member of a society is to prevent harm to others. Arguing after the fact that one did not mean to harm anyone is no legitimate defence.
In recent years, debates around freedom of speech and expression have been hotly contested in court on a large array of contested topics from abortion to blasphemy to hate speech to cartooning. Such cases have sparked intense debate and vigorous disagreement. Despite this a common thread emerges; most courts hold that, in principle, threatening someone with death or serious injury is not ‘protected speech’.
Courts have also routinely insisted that context is highly relevant. If there is a general climate of hostility, hatred and abuse, a ‘borderline’ comment or publication (post) can be seen as incitement.
This is highly relevant in Malta where online commentators routinely advocate violence (including sexual violence) against political opponents, critics of the current regime (including journalists) and endlessly and particularly viciously towards migrants, especially black ones.
In summary, while vigorously upholding and defending the right of freedom of speech and expression, we must recognise that individuals and whole groups have the right not to be demonised, abused or terrorised. This right not to have one’s basic dignity denied along with the right not be terrorised imply significant restrictions on our right to free speech.