The fundamental right to insult our leaders: Three worrying cases in France, the West Bank and right here

17 March 2013 by Adam Wagner

Thanks to Caoilfhionn Gallagher of Doughty Street Chambers for alerting me to this.

The new striker in Real Madrid

Comparing different countries’ legal systems is a dangerous game, but three cases came to light this week which beg to be compared. The criminalisation of criticising political leaders has always been a hallmark of illiberal societies, and it seems that the tradition is still going strong today: in France, the West Bank and the UK too.

First, the European Court of Human Rights ruled that a man should not have been convicted of a criminal offence for waving a placard at (as he was then) President Sarkozy reading “Casse toi pov’con” (“Get lost, you sad prick”). He was prosecuted for insulting the president, an offence under an 1881 Act, even though the phrase was one of Sarkozy’s own, uttered a few months previously. The Court rightly found a violation of the applicant’s rights to free expression protected under Article 10 ECHR, stating that satire, including satirical impertinence:

is a form of artistic expression and social commentary, by exaggeration and distortion of reality which naturally aims to provoke and agitate.That is is why it is necessary to examine with special attention any interference with the right of an artist – or anyone else – to express themselves through it.

Exactly. The freedom to satarize is fundamental to free societies and has formed the basis of every important statement of civil rights over many centuries, including the British 1689 Bill of Rights which protected speech in Parliament (“freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament“) and the First Amendment to the United States Constitution which prohibits Congress making any law “abridging the freedom of speech“.

Not so, apparently, in the West Bank. According to the Times of Israel and Electronic Intifada, Anas Awwad, 26, was sentenced to a year in jail for “cursing the president” on Facebook .

His father says Awwad is being punished for a comment he made about a picture of Palestinian President Mahmoud Abbas kicking a soccer ball taken during his visit to Barcelona Football Club in 2011. Awwad apparently wrote “The new striker in Real Madrid.” His lawyer says he is appealing the decision.

We should be cautious of second-hand reports such as these but it appears that the Palestinian judiciary applied a Jordanian law that criminalizes cursing the King. Although Israel remains in overall control of the West Bank, the Palestinian Authority governs most of its population using a mixture of Palestinian and Jordanian (the West Bank was a part of Jordan prior to its capture by Israel in 1967) law, which explains why a Jordanian law appears to have been the basis of this ruling.

But, if the report is accurate, this is a very bad case for free speech indeed and deserves international attention.

Finally, much closer to home, Bethan Tichborne (@beth_tich on Twitter) has been found guilty of using threatening words or behaviour to cause harassment, alarm or distress, an offence under section 5 of the Public Order Act 1986.

She attempted to climb the security barriers whilst the Prime Minister David Cameron was turning on the Christmas lights in his Witney constituency in Oxfordshire, in December. She claimed her protest was against cuts leading to the deaths of people with disabilities. The court was told that a local children’s choir were “terrified” According to The Guardian, District Judge Tim Pattinson told her:

It is difficult to think of a clearer example of disorderly behaviour than to climb or attempt to climb a barrier at a highly security-sensitive public occasion.

What to make of this final example? It is not clear cut. On the one hand, this was not a pure example of political “speech”. Tichborne climbed security barriers and there was presumably no way for the police (or indeed the Prime Minister) to know whether she was carrying out a legitimate political protest or attempting to attack him. It would be interesting to see a video of the protest to see how “alarming” her behaviour really was.

On the other hand, given that it appears this was meant at all times to be a political protest, was it really necessary to charge her with a criminal offence? Was it in the public interest? Political protests are often passionate and may seem offensive; that doesn’t mean they should be denied protection under free speech laws – as the European Court of Human Rights said in Eon v France, satire “naturally aims to provoke and agitate“. Political protest fails if it doesn’t provoke or agitate.

There has to be a limit when it appears that the physical safety of a politician is at risk, but should genuine (if a little robust) political protesters be charged with criminal offences if no harm, except to the protester, has been done?

Although Bethan Tichborne’s case is perhaps borderline, there have been numerous examples recently of genuine political protesters being hit by the criminal law. This has happened under the Public Order Act, which was recently amended to remove the pernicious ban on “insulting words”; for example, the idiotic convictions for poppy burning, which could happen again despite the change.

There has also been a worrying run of convictions for making “grossly offensive” (whatever that means) comments on social media. Hopefully, the DPP’s new social media prosecution guidance will mean less prosecutions under this offensive law, but I have significant doubts and have said the 2003 law, passed before social media existed, is well out of date.

People are quick to argue that their freedom of speech is being curtailed in any number of situations. But it is right that liberal societies are highly sensitive to restrictions on this fundamental right, and that international institutions such as the European Court of Human Rights provide a robust defence of it when asked to. For as Shakespeare said in King Lear, quoted by the High Court in the notorious Twitter Joke case, people should be “free to speak not what they ought to say, but what they feel“.

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Read more:

• Public insults to be legalised but grossly offensive messages still criminal
• New prosecution guidance on offensive speech online: sensible, but the law is still out of date
• Twelve weeks in prison for sick jokes on Facebook? Really?
• Poppy burning, free speech and the £50 question