UK / Europe — 06 June 2011
Super-injunctions: Defining the limits of free speech

The term ‘free speech’ has always been a misnomer, since no society ever gives a person an absolute right to say whatever they want.

In the UK, for example, libel laws exist to protect people from defamation; race hatred laws prevent incitement; and the Public Order Act would hold someone liable for shouting ‘fire’ in a crowded hall without due cause.

Denmark, arguably one of the most liberal countries in the world, protects its monarch under the libel paragraph of the penal code, which ordinarily allows for up to four months of imprisonment, but doubles it in the case when royalty is the subject of the libel.

Germany outlaws holocaust denial, because of its particular history of fascism, and there have been calls to widen this as a crime across Europe.

Most countries in Western Europe, as well as the United States, boast they are bastions of free speech, and deride Muslim countries that have blasphemy laws.

But given that there will always be some limit to expressions of ideas and opinion, who or what is it that decides this limit?

Britain has recently been in confusion over this issue. Parliamentary laws that give individuals a right to privacy have become the focus of political debate, since the rich and famous have used banning orders (so-called super-injunctions) to prohibit the reporting of their personal misdemeanours. The courts issue such orders, which prevent the television networks and print media disclosing the identity of the individual and what they have been alleged to have done if there is no ‘public interest’.

The media and some prominent politicians have criticised this, saying it is judges who are now deciding the limits of free speech – which is not true, since the judges are merely enacting the law as made by Parliament.

But it is the rise of the internet, globalised media and social networking sites that are not covered by English law, together with the fact Scotland has a separate legal system, which has all highlighted major contradictions and loop holes.

Even some MPs have demeaned the courts by using Parliamentary privilege (an immunity from prosecution) to violate the courts’ orders to protect the privacy of an

The media – who make more money by printing gossip, innuendo, and sensational revelations about celebrities, have called for a change to the law. They argue this contradicts the right to free speech. Politicians courted by the media lobby argue the same – that the judges are stifling free speech.

In effect they are arguing that if the public buys newspapers (a generous though inaccurate label for the UK tabloid press) that contains stories they find interesting that this proves it is in the public interest i.e. the market should decide what defines public interest.

This confusion will undoubtedly continue, since Europe’s views on free speech have evolved from a serious concern surrounding intellectual inquiry and political criticism, to today’s tabloid press – an orgy of gossip, slander and vulgarity that demean the societies they pollute.

During the era that the Catholic Church dominated Europe, criticism of authority was severely suppressed and intellectual inquiry labelled as heresy. Much of the debate about free speech in Europe evolved against this background, and led to the view that there should be a presumed right to be able to speak, except in those areas that sovereign parliaments prohibited.

But the well intentioned idea to promote political criticism and intellectual debate through this approach to ‘free speech’ did not foresee the consequences of deriding and mocking anything and everything – which has opened the door to a society where some people freely insult each, and have little respect for the authority of teachers or the law.

Islam did not address these issues as a reaction to anything. Islamic law is derived from the revealed texts, and gives a much clearer and robust framework that separates political and intellectual – from personal and gossip; and ensures political authority faces robust criticism, and allows an atmosphere of debate and intellectual scrutiny.

Criticising political authority is not so much a right as a duty, under Islamic law. There are recurrent instructions in the Quran and the Hadith (sayings and actions of the Prophet) that call upon people to ‘enjoin what is good, and forbid what is wrong’. This can be, in one sense simply fostering an atmosphere of sincere advice to each other – amongst family, friends, neighbours and colleagues – so that society keeps itself regulated. But Islamic scholars over the centuries dwelt on the political aspect of these injunctions, and how they applied to keeping the rulers in check.

The duty does fall upon all individuals if capable. Hence, those who operate in an independent media would be obliged to scrutinise, question, criticise and account the government.

There is a wider collective duty, however, to ensure there are institutions, political parties, groups or organisations who take on this role permanently.

In any situation the courts are the final arbiter of whether the government had overstepped its role, or fallen short in some way. Indeed, even though the courts should pursue these matters independently, it is the duty of individuals, independent media, the legal community, academic community, and political groupings to undertake this role as well.

Side by side with this, centuries of Islamic history are testament to the fact that the door is open to intellectual inquiry and debate. The former is actively encouraged by the Quran. The latter was a strong tradition for centuries, and largely did not worry clerics, since the fundamentals of Islamic belief (that unite Muslims of all persuasions) were based on reason, and withstood rigorous intellectual scrutiny. Hence, debates largely centred around matters of ‘ikhtilaaf’ (difference of opinion).

As regards gossip, title-tattle, slander – the stuff of tabloid newspapers – Islam has a very clear view. The private lives of individuals are not to be examined and “exposed” in public. Accusations, innuendo, suggestions are not to be reported, and the only concern for the society are those public acts which affect the public sphere directly. Any wrongdoing is not to be reported in the papers but rather resolved in courts, with fixed Quranic punishments stipulated for those who spread rumours regarding others personal affairs if the accusations did not meet a legal standard. A clearer distinction between the political and intellectual on the one hand, and personal and private on the other, could not be found – reinforcing one strongly, and defining the public interest to the fact of whether or not a prosecution might be sustained.

Dr. Abdul Wahid is a regular contributor to New Civilisation. He is currently the Chairman of the UK-Executive Committee of Hizb ut-Tahrir in Britain.

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