The right to criticise and the determination of permissible expression in harassment cases: The decision in Pal v United Kingdom

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Abstract

This article will critically examine the law of harassment in light of the recent decision of the European Court of Human Rights in Pal v United Kingdomwhere it was held that UK law had failed to uphold the principles of freedom of expression and the distinction between permissible and impermissible speech in domestic harassment proceedings. As suggested in the article, the judgment in this case may be an unfortunate one off, which does not represent the general domestic jurisprudence in this area. Nevertheless the article will examine the potential effect of the decision on the protection of freedom of expression in harassment cases, particularly where the defendant in these proceedings is a journalist (official or otherwise), or is otherwise using their free speech rights to raise matters of genuine public debate. In such cases, it will be argued that free speech arguments should not, and in general are not, diminished simply because the action, or other proceedings such as warnings, are brought under harassment laws. In this context, the article will also attempt to distinguish between cases that clearly fall into the protected category of public interest speech, as opposed to those where the actions of the defendant have been inspired by vindictiveness and the resolution of a purely private dispute, and where the courts might show a limited tolerance of such speech. Yet the article will also identify the dilemma of categorising cases into these two broad categories: where the public interest value of the acts or conduct is combined with private vindictiveness, a dilemma that may well have led the domestic authorities to depart from established free speech norms in the Pal case.
Original languageEnglish
Pages (from-to)571-586
Number of pages12
JournalEuropean human rights law review
Volume2022
Issue number6
Publication statusPublished - 10 Dec 2022

Bibliographical note

This is a pre-copyedited, author-produced version of an article accepted for publication in European Human Rights Law Review, following peer review. The definitive published version Foster, S 2022, 'The right to criticise and the determination of permissible expression in harassment cases: The decision in Pal v United Kingdom', European Human Rights Law Review, vol. 2022, no. 6, pp. 571-586.is available online on Westlaw UK.

Copyright © and Moral Rights are retained by the author(s) and/ or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This item cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder(s). The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders.

Keywords

  • Arrest
  • Freedom of expression;
  • Harassment
  • Journalists
  • Public interest
  • Right to respect for private and family life

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