Not all free speech is created equal – court upholds restrictions on propaganda disseminated through social media

In Phillips v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin) the High Court considered the boundaries of the right to free speech and the permissibility of interference with such fundamental rights.

Key points

• The right to freedom of speech is a fundamental common law right. However, it is subject to varying degrees of protection based on the nature of the speech. There is a distinction to be made between legitimate political dissent, which warrants the highest level of protection, and illegitimate propaganda where lesser protection is afforded.
• A high level of protection can, in principle, also extend to responsible "citizen journalists", "bloggers" and "popular users of social media", although it is necessary to recognise that the risk of harm posed by content and communication on the internet is higher than that posed by the traditional press.
• The court will consider the extent to which it should defer to the institutional competence of public bodies and the extent to which it can form its own judgment. However, in particularly sensitive areas like foreign policy the court will place significant weight on the assessment of the decision maker.

Background

The claimant, a British citizen, challenged the Foreign Secretary's decision to maintain his designation which resulted in asset freezing restrictions pursuant to the sanctions regime which addresses the Russian invasion of Ukraine: the Russia (Sanctions) (EU Exit) Regulations 2019 (the “2019 Regulations”) made under s1 of the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”). Under ss 38-40 of SAMLA, which provides for court review of certain sanctions decisions, the court must apply the principles applicable in judicial review.

The defendant described the claimant as a propagandist for Russia, supported by the Russian authorities, who publishes content (mostly on social media) that feeds into a Russian propaganda narrative, thereby supporting and promoting actions and policies which destabilise Ukraine and undermine or threaten Ukraine's territorial integrity, sovereignty, and independence.

The claimant argued that he was a journalist working to “counterbalance” the widespread western misunderstanding of the situation in the affected region and that his designation was a result of expressing his political opinion. He challenged the designation on human rights grounds and alleged that there had been an unlawful interference with his rights under Article 10 (right to freedom of expression), Article 8 (right to private and family life) and Article 1 of the First Protocol (“A1P1”) (right to peaceful enjoyment of possessions) of the European Convention on Human Rights (“ECHR”).

Judgment

There were a number of issues for the court to consider including whether SAMLA and the 2019 Regulations permitted the imposition of sanctions in response to free speech, and whether the claimant's designation was an unlawful interference with his ECHR rights.

The court acknowledged the fundamental importance of the right to free speech, and in particular the highest protection required for genuine political dissent, including noting the indirect chilling effect of deterring the exercise of free speech. The press has long been recognised as a public watchdog for these purposes, with appropriate protections for journalists. Johnson J considered that a similarly high level of protection can, in principle, also extend to responsible "citizen journalists", "bloggers" and "popular users of social media", although it is necessary to recognise that the risk of harm posed by content and communication on the internet is higher than that posed by the press.

The important policy considerations that underpin free speech show that it would be wrong to afford equal protection to all speech. The court noted that in the online world of social media, bots, trolls, cyber troops, false and hacked accounts can be used to drown out genuine free speech and replace it with a dishonest narrative to suit the whim of an autocrat, government or some other powerful body or person. Propaganda, disinformation and misinformation can be corrosive of democracy and national security.

Although cautioning that it was not always easy to distinguish between genuine political dissent and propaganda, the court was not convinced that the claimant was engaged in lawful political speech, as he contended. Instead the court found that the material published by the claimant aligned with “central themes of Russia's propaganda war” and was not “consistent with responsible journalism”, noting that it was entirely one-sided without any nuance or balance. This was not therefore a case of the state censoring political speech that warrants the “greatest legal protection”.

In determining the reach of the legislative regime, the court considered the broader context and the principle of legality, namely that Parliament can pass legislation that overrides common law rights, including the right to free speech, by using clear and unambiguous language demonstrating that intention. It was apparent from this exercise that both SAMLA and the 2019 Regulations were intended to override fundamental rights, most obviously property rights but also freedom of expression.

Once the court had established that the defendant had the statutory power to impose the sanctions, it turned to the question of whether the exercise of that power was an unlawful interference with the claimant's ECHR rights. In answering this, the court assessed the continuation of the designation against each element of the proportionality test: (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community.

The court adopted the approach in Shvidler and reiterated that it would take account of the decision-maker's assessment on proportionality when forming its conclusion and in particular, it would place special weight on the assessment where matters relating to foreign policy were concerned. Accordingly, when tackling the limbs of the proportionality test, the court accepted that the defendant is best placed to assess the least intrusive means of achieving the intended objective. Similarly, significant weight was placed on the defendant's decision that a fair balance had been struck when the sanctions were first imposed and then maintained.

On the question of whether less intrusive measures could be used, the court held that removal of the content from social media would not achieve the objective of sending a message and deterring others. Interestingly, the court considered the evidence presented and concluded that asking social media companies to remove the content would not be a “realistic option”. The difficulty in persuading social media companies to remove or prevent further content was recognised and the court also noted the agility with which the claimant was able to move across different social media platforms, as well as the possibility of the claimant operating a pseudonymous account. Further, Johnson J took the view that removal of content from social media would in fact more directly and significantly interfere with the claimant's right to freedom of expression than the sanctions themselves (which do not prevent him from using social media and which do not require social media companies to remove his content for those outside the UK).

The court acknowledged that the designation significantly interferes with the claimant's right to private and family life, right to peaceful possession and to a limited extent the right to freedom of speech, but considered that a fair balance had been struck between the ECHR rights and the legitimate aim pursued.

Comment

In assessing the proportionality of sanctions decisions under the ECHR, the court endorsed the traditional approach of placing weight on the views of the decision-maker when forming its own conclusion. The degree of deference will vary, but is especially pertinent where the matter involves foreign policy.

The judgment is also notable for its consideration of the right to free speech and, in particular, the comments about that fundamental right in the online and social media context. Such considerations go far beyond the sanctions regime and are highly topical at present given developments in regulation such as the Online Safety Act 2023.