Here’s the general issue…
It is such an infuriating experience when you log on to your regular social media hub and stumble across posts that are so wildly offensive it makes you stop and contemplate writing back, before realising you’d only be wasting your time in an online war fueled by likes and straw mans rather than rationale and thought. [For convenience I am going to refer to people who make such offensive comments “X”]. So here I am, trying not to engage in a pointless online argument and instead attempting to providing a legal viewpoint on this subject (granted, I am just a law student and most of what I study does not fall directly within this field so do read this post with caution).
Now I’m sure you have come across offensive and sometimes downright racist and sexist comments, whether or not they were directed at you, but just in case you wanted an example, here is a screenshot of some comments I saw on an Instagram post earlier. For context, these were comments on a photograph showing an Asian model for a high street make-up brand:
Unfortunately, there are far too many instances of racism and sexism online to show them all here, but I’m sure you are equally aware of this. These comments anger me because of the underlying assumptions made on the ignorant basis that all Asians are the same. Asia is the world’s largest continent with the largest population too. It is a matter of logic that one cannot generalise and remain accurate when describing Asian people and their traits. Specifically, relating to this post, X clearly has a belief that all Asians have unflattering eyes, that not even plastic surgery can help, and that as a result all Asians wish to change their eyes using “super fake” methods, bringing X to her conclusion that unfortunately not everyone is born beautiful. Well, isn’t that an insightful rationale! While I would be more than happy ranting on about equality, feminism and other ideologies in abstract terms, I don’t think I’ll be adding much to the discussion so instead I’m going to focus on the law and the normative arguments behind why these comments are inappropriate. So apologies to those who thought this was a nice ethical rant!
Freedom of Expression
It’s common to hear X say something like: “well, that’s my opinion and this is a free country so I’m entitled to express my opinion” after expressing an opinion that most would regard as overtly racist/sexist. And most of the time this seems to do the trick – what can you reply to that? Even while discussing this “freedom of expression” argument with one of my friends, she reminded me that, in its original conception this probably was the core of the idea – I am at liberty to express myself and you do not have a right to impede that.
The protection of rights and freedoms were brought under the limelight in the aftermath of WWII. It became clear that there were fundamental rights that we, as human beings, have and that ought to be protected. The instrument that most think of when discussing such rights is the European Convention on Human Rights, implemented by the Human Rights Act 1988 (in the UK). The Convention protects such rights as a right to a fair trial, a right to life and the right to education. It equally prohibits torture and slavery, among other things. The freedom to expression is one of the liberties that we are entitled to under the Convention. More specifically Article 10 of Part 1 of Schedule 1 of the Human Rights Act says:
Article 10 Freedom of expression
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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, 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, or for maintaining the authority and impartiality of the judiciary.
Note that paragraph 1 establishes that we all have the right to freedom of expression (point to X). However, paragraph two limits this right. Paragraph 2 clearly states that the exercise of this freedom may be subject to formalities, conditions and even restrictions or penalties which are (a) prescribed by the law and are (b) necessary in the interests of, inter alia, the protection of health or morals and the protection of the reputation or rights of others. Before continuing it is perhaps helpful to compare this provision to the prohibition of torture which has no such limiting clause:
Article 3 Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The prohibition of torture is unqualified in comparison to the freedom of expression.
Textually, it is important to understand that the freedom of expression is not simply a shield that can be used for people making racist/sexist and generally discriminatory comments. It comes with qualifications reflecting the idea that the freedom extends only to a certain extent. So the next question then is, to what extent?
The Protection of Morals and the Reputation or Rights of Others
Let’s just get a couple of things straight first:
- the qualifications on the Freedom of Expression allows only the State to impose restrictions on that freedom
- any restriction would also have to satisfy the requirement (a) mentioned above (i.e. be prescribed by law)
So I am not here arguing that we should go to X and reply, “well ha! The freedom you’re relying on isn’t absolute and therefore you are wrong!” – we ought to criticise X on the basis of the comment’s substance. Saying something like “unfortunately not even plastic surgery can help Asians” is wrong not only because the law clearly reflects an anti-discriminatory legal attitude to such matters (The Equality Act 2010, the Race Relations Act 1976 as amended by the Race (Amendments) Act 2000, the Sex Discrimination Act 1975 and the Disability Discrimination Act 2005), but also, and arguably more importantly, it is wrong because it offends our moral senses – our collective public morals.
A lot of the time though, it is difficult to explain why such comments are wrong, other than classifying it as discriminatory. In these situations I believe Roman law provides us with an interesting perspective.
In Roman law, contra bonos mores was a legal requirement when establishing certain wrongs. Roughly translated it means something done contrary to the good morals of society. For example, Roman jurists spoke of a man, Lucius Veratius, who went around slapping people for fun. At the time of this, Roman law dictated that those who slap people around the face (and thus committing iniuria) are liable to pay a fixed penalty of 25 copper coins, so Lucius simply had a slave follow him, while he went on his slapping rampage, paying each victim 25 copper coins after Lucius had exacted his idea of fun. The Roman jurists quickly saw how this was wrong and indicated a defect in the law so not long after, the Praetor (a Roman magistrate) provided that victims could now estimate the iniuria so that the penalty to be paid would be what the victim says, unless the judge disagrees. Why am I discussing this here?
Well iniuria is a very peculiar type of wrong. From what we know, the interest that the law protected was a person’s equal share to respect (this is a theory which Birks presents). So for example, defamatory writings were caught under iniuria. Equally, slapping someone’s face was iniuria because it was an insult to the person slapped and also a way of saying that the person doing the slapping was somehow above everyone else – it is contumely [and incidentally what iniuria came to be known as]. The one thing that grouped these various types of iniuria together however, was the fact that the conduct was often contra bonos mores. In fact even someone, who at first sight is doing what the law requires, may be liable for iniuria if it is contra bonos mores.
There was another interesting example given by Roman jurists which spoke of a man (A) mourning his father’s death, following another man (B) with disheveled hair. This type of mourning with dishevelled was actually required in Roman law and so at first it seems as though A is doing nothing wrong. However, A believes B to have caused his father’s death, which is why he is following B. Everyone in the village starts to realise this and so B is made infamous and in Roman times that was a big deal. The way then that Roman jurists were able to say that this was iniuria was by applying the requirement of contra bonos mores. The reason A’s conduct was wrong was because he followed B around, contrary to the good morals of society (which included not disrespecting someone regardless of how lawful your conduct seems).
So now what?
Linking this all back to discrimination, we can argue that while freedom of expression may, at first, appear to grant us a right to make discriminatory comments and express ourselves howsoever we wish, it is and also ought to be limited to reflect core moral and social values – such as everyone’s right to respect. Of course, I am aware that the Roman concepts are vague and do indeed stretch a little far and thin when applied in this context. It is certainly beneficial and necessary to protect freedom of expression (in particular with regards to the press), and it mostly allows us to engage in intellectual and thought-provoking debates. However I do not believe that this entitles us to make discriminatory remarks even on a casual online basis. The fact that as early as 450 B.C. human beings recognised the need to respect one another causes me to reflect upon our social interactions today and I hope that, as lengthy as this post is and whether your agree with my view or not, you have found something worth thinking about.
The Law Student 