3 May 2019

In a previous blog, James Murray asked whether Academic Freedom of Speech in the UK could withstand its current threats and discussed the relevant domestic law. Here, he considers the extent to which international law helps mitigate any such threats.

Challenging the prevailing orthodoxies

It is not straying into hyperbole to say that these are extremely important questions, given the fundamental necessity of Academic Freedom of Speech to the proper functioning of a modern liberal democracy.

The European Court of Human Rights (ECtHR) has said the following:

There is no Chinese wall between science and a democratic society. On the contrary, there can be no democratic society without free science and free scholars”.

The Council of Europe, which helps oversee the European Convention on Human Rights (ECHR) alongside the ECtHR, considers:

academic freedom and institutional autonomy as intrinsic values of higher education which are essential to the overarching values and goals of the [Council] – democracy, human rights and the rule of law”.

Academic Freedom of Speech is essential because it allows an academic, without fear of loss of their position or privileges, to put forward views antithetical to the prevailing political or academic orthodoxies, and to test received wisdom, even if those views are controversial or unpopular.

It is worth noting, before continuing, the ECHR is separate from the European Union and so what follows will be unaffected by Brexit.

The ECHR position

Article 10 of the ECHR states:

1. 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…

2. 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..”

The ECtHR has spent a great deal of time on the general interpretation of those provisions, but it has given detailed consideration more specifically to a number of fundamental aspects of Academic Freedom of Speech.

As universities are public bodies, the Human Rights Act 1998 requires them to take ECtHR case law into account when making certain decisions and so it is crucial to determining the meaning of “within the law”[1] and/or whether a breach of the Equality Act 2010 has occurred. With that in mind, the answers from the ECtHR to the following questions should be of great interest to both academics and universities:

1.  To whom does the protection apply?

The individual claiming the protection must be capable of being considered an academic. Most ECtHR cases have so far concerned university professors (in a loose sense) so there hasn’t been detailed consideration of this point; however they suggest that an ordinary interpretation of the word is more appropriate than the stricter distinction made by some universities’ statutes which seek to exclude, e.g., certain kinds of researchers from the scope of Academic Freedom of Speech.

2.  When does the protection apply?

Academics do not enjoy carte blanche to make comments on any topic they wish. In order to enjoy protection, the speech must be within their sphere of research and be based on their “professional expertise and competence”. Once that is satisfied, however, the speech need not necessarily be in a formal academic journal in order to be protected.

However, the emphasis is important here because of obligations on academics also to comply with established standards of research ethics and integrity. Protection is at risk of being lost if those standards are compromised.

3.  What level of protection is provided?

In short, the level is very high. The ECtHR has said that, in the right circumstances, academics are afforded “the highest level of protection under Article 10”. Any interference with their right to free speech has to be strictly and narrowly construed and the fact that the speaker is an academic may mean that a comment does not infringe the ECHR rights of others (e.g. under Article 8) in situations where the same comment by a non-academic would be an infringement.

4.  Can the level of protection vary?

The rationale for the protection (see above) means that topics that touch on matters of public interest are afforded higher protection when applicable – an important point given that such topics are more likely to generate controversy.

The nature of the medium in which the speech is published, and the methodological rigour which underpins it, may also affect the level of the protection.

5.  Can the protection be lost?

In certain circumstances, it can be lost. It is unlikely that any statement which amounts to a value judgment based on racial superiority/inferiority will have much, if any, protection under Article 10. This is a more general public policy position of the ECtHR (many cases concern topics such as Nazism and holocaust denial), but it also applies to Academic Freedom of Speech.

Freedom is not “absolute”

Academics are afforded significant protection to express their views freely – arguably higher than any other member of society. However, their freedom is not absolute. Article 10(2) recognises that it comes with “duties and responsibilities” and that is confirmed by the ECtHR case law.

That there are limitations must be right. If there is no remedy for the exceptional case or instance of serious abuse – which history tells us cannot be avoided forever in human society – then we run the risk of the freedom itself being undermined; any law is open to being bent and abused.

The circumstances in which such a case appears should be rare – and that again must be right given the importance of the freedom – but they can and do exist. We should note, however, that none of this is to say certain topics per se cannot be discussed at all or that there should be absolute freedom for any speech on any topic; it merely acknowledges the ways in which topics can be discussed are more complicated than such a simple dichotomy would allow. Again, the emphasis here is important.

Universities as guardians of Academic Freedom of Speech

Universities are – both by law and by the essence of their function in a democratic society – the guardians of Academic Freedom of Speech. They protect and promote this freedom by standing firm when it is wrongfully challenged, but also by acting decisively when it is abused.

The question of whether that line has been crossed is immensely difficult and one which – as recent high profile examples show – will often be subject to significant public scrutiny. While the above gives an overview of the key questions for academics and universities and some general answers, each case will be finely balanced and highly sensitive to the facts concerned.

Overall, the combination of domestic and international law governing Academic Freedom of Speech in the UK means that its protection is robust. However, recent high profile examples and the proliferation of “chilling” phenomena suggest that universities may not be fully aware of their obligations and the protection which academics have. If so, then they may have much more legal exposure than they anticipated when dealing with these issues (not to mention ethical considerations which root the freedom in the essence of the academy).

The legal tools exist for Academic Freedom of Speech to withstand its current threats in the UK; the real question is whether there is a will to use them.

Find out more about the team: Advising the innovation economy on research ethics, integrity and commercial exploitation.

James Murray is an Associate in Taylor Vinters’ multi-disciplinary higher education team. The team advises a range of higher education providers, research institutes and learned societies on issues including: academic staff engagement and intellectual property; governance and regulation; and research ethics and integrity.

[1] Section 43 of the Education (No 2) Act 1986 – see our earlier blog.