Back to Index of Limits on Freedom of Expression

The UK provides for freedom of expression as a qualified right that may be restricted in certain circumstances as prescribed by law.  For any law restricting an individual’s freedom of expression, various criteria must be met.  The UK has laws in place that operate to prevent people from heckling speakers, but these are not frequently implemented.  The main laws that appear to be used against hecklers are those aimed to preserve public order. 

Foreign broadcasters operating in the UK and broadcasting to UK audiences must be licensed by the UK’s communication regulator, Ofcom.  In order to obtain a license, the broadcaster must agree to license conditions and to comply with the Broadcasting Code.  If a broadcaster fails to abide by these conditions or the Code and laws, Ofcom may take action, including issuing its findings publicly, imposing a financial penalty, or suspending or revoking the broadcaster’s license in the UK. 

I. Introduction

A number of laws protect freedom of expression across the UK.  While freedom of expression is protected, it is a qualified right, meaning that there are certain circumstances in which it may be overridden, provided a defined set of criteria are met. 

The UK has a number of criminal laws that can be used to stop individuals from heckling speakers if the behavior is disruptive, but these do not provide an absolute prohibition on heckling and operate in balance with the need to ensure people have the right to express themselves.

Broadcasters that provide services across the UK, including foreign broadcasters, must be licensed by Ofcom, the UK’s regulator for broadcast media.  There are a number of criteria that must be met by the broadcaster prior to Ofcom issuing a license and, once a license is issued, the broadcaster must continue to abide by the conditions of that license.  If the broadcaster fails to meet these criteria, Ofcom has a number of steps that it may take, including revoking the license and thus the ability of the broadcaster to operate across the UK. 

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II. Heckling

A. Freedom of Expression

The European Convention on Human Rights was incorporated into the national law of the United Kingdom by the Human Rights Act 1998.[1]  Article 10 of the European Convention on Human Rights provides for freedom of expression and grants individuals the right to hold opinions, and to receive and share ideas, without state interference.  It specifically includes politics and matters of public interest:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.[2]

Freedom of expression is a qualified right, which means that it may be restricted in certain circumstances provided it is prescribed by law and necessary in a democratic society to protect a legitimate aim.  Article 10(2) specifies as follows:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, and for maintaining the authority and impartiality of the judiciary.[3]

The European Court of Human Rights has determined that whether the restriction on freedom of expression is necessary “requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate.”[4]

B. Criminal Legislation

A number of criminal laws may be used to prevent hecklers if the behavior is disruptive and meets additional criteria.  The Public Meeting Act 1908[5] provides that it is an offense to act in a disorderly manner at a public meeting if the purpose of the disorderly behavior is “preventing the transaction of the business for which the meeting was called together.”[6]  The Act does not define “meeting” or “public meeting,” and much of the case law is focused on whether or not the meeting is lawful.[7]  The offense is punishable by up to six months of imprisonment and/or an unlimited fine.   In cases where the meeting is part of an electoral campaign during the campaign period, it is unlawful under the Representation of People Act 1983 for a person to act, or incite others to act, in a disorderly manner to prevent the purpose of the meeting from occurring.[8]  “Lawful meeting” in this instance is “a political meeting held in any constituency between the date of the issue of the writ for the return of a Member of Parliament for the constituency and the date at which a return to the writ is made, or a meeting held with reference to a [specified period for a] local government election.”[9]  This offense is punishable with an unlimited fine.

Section 5 of the Public Order Act 1986 provides it is a criminal offense to “use[] threatening or abusive words or behaviour, or disorderly behaviour . . . within the hearing . . . of a person likely to be caused harassment, alarm or distress thereby.”[10]  This offense is punishable by a fine of up to £1,000 (approximately US$1,300).  Any of the following three circumstances may constitute a defense to this crime, however:

• The accused did not have any reason to believe there was any person within hearing distance that would likely be caused harassment, alarm, or distress;
• The accused was inside a home and did not believe anyone outside that home could hear; or
• The conduct was reasonable.[11]

The law previously included using insulting words as part of the offense but after a campaign to repeal this law[12] and a government review, the word “insulting” was removed from the offense in 2013.[13]  During the review, campaigners argued that the section inhibited the public from speaking openly, and that “[i]n a free and democratic society, insults should not be a criminal offence.”[14]

The common law offense of breach of the peace may also apply in circumstances where hecklers cause harm, or are likely to cause harm, to a person or the person’s property in his or her presence, or where the behavior causes the person to be “in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance.”[15]  This offense has been used against hecklers—for example, an individual received a deferred sentence for breaching the peace by heckling at a memorial service.[16]

Additional laws that could feasibly be used against hecklers who are particularly disruptive include the Protection from Harassment Act 1997.[17]  This Act was enacted to protect individuals from harassment from stalkers, but it has been argued that it might in some cases be “applied against demonstrators whose acts cause harassment to particular individuals.”[18]  Section 1 of the Act prohibits individuals from acting in a manner that amounts to harassment of another person, where the perpetrator knows, or ought to know, that the action amounts to harassment.  This offense is punishable with up to six months of imprisonment.[19]

An individual was ejected from a conference held by government ministers due to heckling and then prevented from re-entering, reportedly pursuant to powers under section 44 of the Terrorism Act,[20] which at the time provided the police with the ability to stop and search individuals in certain scenarios.  This incident later resulted in an apology from the political party, which noted the way the individual had been treated was “inappropriate.”[21]

 

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III. Foreign Broadcasters Working on Behalf of Foreign Governments

Foreign broadcasters working on behalf of foreign governments may be covered under EU and UK legislation if they are uploading content to a satellite in the UK, or are broadcasting content in the UK from other EU Member States.  The EU Audiovisual Media Services Directive provides that broadcasters located in other EU states may broadcast into the UK and are covered under the laws of the country the broadcast originates from, or the state where the content is uploaded to the satellite.[22]

The Communications Act 2003[23] and Broadcasting Acts of 1990[24] and 1996[25] provide the legislative framework within which broadcasters operating in the UK must operate.[26]  Ofcom was established under the Communications Act 2003 and has a number of roles, including enforcing content standards across television and radio broadcasters and the UK’s media and telecommunications companies.[27]  When carrying out its statutory functions, Ofcom has a duty to ensure that television and radio services have

. . . standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services [and that] provide adequate protection to members of the public and all other persons from both:
(i) unfair treatment in programmes included in such services; and
(ii) unwarranted infringements of privacy resulting from activities carried on for the purposes of such services.[28]

In order to provide television, radio, or on-demand video services in the UK, broadcasters must obtain a license from Ofcom under the Broadcasting Act 1990 and Broadcasting Act 1996.  In order to grant a license, Ofcom examines the application to determine whether the applicant and the proposed programming are “fit and proper.”[29] If it considers that these criteria are met it may grant the license for a set duration, which may be renewed.[30]  State-controlled broadcasters that are licensed by Ofcom are required along with other broadcasters to comply with the Broadcasting Code.[31]  When granting licenses to state-controlled broadcasters, Ofcom has stated the consideration of whether such a broadcaster is fit and proper involves different considerations:

17. . . . States have a unique range of activities, both domestically and internationally, that are undertaken within a legal and conventional framework that is intrinsically different from that which applies to individual and corporate licensees.

18. States whose services Ofcom has licensed vary greatly in the extent to which they accept and conduct themselves according to UK and generally accepted international values. States sometimes commit, or will have committed, acts which are contrary to these values. In our judgment, it would be inappropriate for Ofcom always to place decisive weight on such matters in determining whether state-funded broadcasters were fit and proper to hold broadcast licences, independently of their broadcasting record. If we did, many state-funded broadcasters (mostly those from states which may not share UK values) would be potentially not fit and proper. This would be a poorer outcome for UK audiences in light of our duties on plurality, diversity and freedom of expression.[32]

Section 3(4)(g) of the Communications Act 2003 requires Ofcom to protect audiences against harmful and offensive material “in the manner that best guarantees an appropriate level of freedom of expression.”[33]  Working together, the Communications Act 2003 and the Broadcasting Act 1996 place a duty on Ofcom to establish the standards for broadcasts, and compliance with these standards is part of the license conditions imposed on broadcasters.[34]  

The Broadcasting Code contains various rules, including those

• protecting children under the age of eighteen years of age;[35]
• prohibiting the broadcast of materials likely to incite crime or disorder;[36]
• ensuring that news reports are provided with due accuracy and due impartiality,[37] with the Broadcasting Code notably specifying that, “[i]n dealing with matters of major political and industrial controversy and major matters relating to current public policy an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes. Views and facts must not be misrepresented”;[38]
• avoiding unfair or unjust treatment of individuals or organizations within programming;[39] and
• ensuring broadcasters maintain editorial independence and control over programing, that there is a clear distinction between content and advertising, and that unsuitable sponsorship is not permitted.[40]

There have been instances where the government used licensing conditions to prohibit the voices of specific members of a political group from being broadcast across the UK during “the Troubles” in Northern Ireland.  The aim of this was to deny terrorists “the oxygen of publicity”[41] and it was deemed in the public interest to issue such a ban.  On October 19, 1988, the then Home Secretary, Douglas Hurd, issued a notice[42] under clause 13(4) of the BBC Licence and Agreement to the BBC and under section 29(3) of the Broadcasting Act 1981 to the Independent Broadcasting Authority prohibiting the broadcast of direct statements by representatives or supporters of eleven Irish political and military organizations.[43]  The statements made by these individuals could still be broadcast, just not the individuals’ voices.

If a broadcaster breaches the Code, Ofcom publishes its findings explaining why the broadcaster breached the Code and may direct that the program not be repeated or order the broadcaster to air a correction or statement of its findings.[44]  If a broadcaster breaches the Code in a serious, deliberate, or repeated manner, Ofcom may impose statutory sanctions against the broadcaster, including fines of up to £250,000 (approximately US$318,000) or 5% of the broadcaster’s revenue, and it may shorten, suspend, or revoke the broadcaster’s license.[45]  Examples of Ofcom findings over television shows that it has deemed to breach the Broadcasting Code, and investigations, include the following:

• Fox News Broadcasts, which were found during the 2016 US presidential elections to be “largely pro-Trump and did not sufficiently reflect alternative viewpoints,”[46] and thus violated the Code for not being impartial.[47]  Fox News ceased broadcasting in the UK prior to this decision being published, stating its decision was due to low audience figures making the show commercially unviable.[48] 
• TV Novosti—which is financed by the Russian Federation and was determined by Ofcom to be thus controlled by the Russian government—was investigated by Ofcom after the poisoning by a nerve agent of two Russian nationals in England saw an influx of programs broadcast on the channel that potentially violated the due impartiality requirement of the license.  As a result, in April 2018, Ofcom opened several investigations into whether news programs violated the terms of the license, and these remain ongoing.[49]
• Press TV, an Iranian-funded television channel, broadcast shows featuring a British politician.  Ofcom determined the shows violated the broadcasting code by failing to air alternative viewpoints on controversial issues. The content of the show was comprised mainly of pro-Palestinian viewpoints, with very limited input from individuals with pro-Israeli viewpoints.  In this case, Ofcom noted that, “where a matter of major political controversy is being discussed, as here, the broadcaster must ensure that an appropriately wide range of significant views must be included and given due weight in each programme or in clearly linked and timely programmes.”[50]  It determined that Press TV did not control its editorial content and Ofcom used its powers to close the channel.
• Ariana International, a channel originating in Afghanistan but broadcasting in the UK that broadcast a news item with a two-minute video filmed by a terrorist prior to him conducting a terrorist attack.  Ofcom determined “the programme contained hate speech and was likely to encourage or to incite the commission of crime or to lead to disorder . . . with no surrounding content that sought to challenge, rebut or otherwise contextualise Muhammad Riyad’s highly extreme views.”[51]  It imposed a penalty of £200,000 (approximately US$250,000) on the channel.   
• News channels BBC World News and CNN International aired programs funded by foreign governments, charities, and other bodies without informing viewers the shows were sponsored content.  BBC World News stated it obtained some of these programs for low fees and Ofcom stated that complex funding arrangements posed an “inherent risk to independence and editorial integrity,”[52] but determined that the broadcasters had not compromised editorial independence.    

Ofcom has the ability to issue an order to proscribe a foreign satellite service[53] if it deems the service to be of an “unacceptable quality”[54] and it is in the public interest to proscribe the service.[55]  The offensive subject matter must be “repeatedly contained in programmes included in the service” and must offend “good taste or decency or [be] likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling.”[56]  

Once a service has been proscribed, it is an offense for a person to engage in conduct in support of the foreign satellite service.[57]  Such actions include supplying program material to be included in the service, or arranging or inviting others to do so.  Such offenses are punishable with up to two years of imprisonment.

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Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
June 2019

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Last Updated: 12/30/2020