Free Speech vs. Hate Crime Laws: Balancing Rights in the UK

Introduction:

The right to freedom of speech is a fundamental human right and is one of the key pillars of democracy, protected under the European Convention of Human Rights (ECHR). In the UK, there is no official legal definition of what constitutes ‘hate speech’, but various laws recognise protected characteristics, including race, religion, and sexual orientation. Such characteristics are often the target of hate speech, which may disproportionately impact marginalised or minority groups in society. The recent implementation of the Online Safety Act 2023 (OSA) aims to regulate social media platforms from illegal and harmful content, which critics argue has the potential to restrict material regarded as ‘hate speech’ and therefore has implications for limiting the extent of free speech. Thus, it is clear that the UK government must carefully navigate a balance between the right to democratic freedom of speech and the need to protect society from disruptive hate speech. This article will explore the basis for free speech in the UK, including how it is protected along with the limitations imposed on it through treaties, statute laws, and court cases.

The Legal Foundations of Free Speech

Article 10 of the ECHR guarantees the ‘freedom to hold opinions and to receive and impart information and ideas without interference’ (Council of Europe, 1950). Nevertheless, Article 10(2) reveals the conditional and non-absolute nature of the right, stating that it ‘may be subject to such formalities, conditions, restrictions, or penalties […], for the prevention of disorder or crime, […] [and] for the protection of the reputation or rights of others’. Under the Human Rights Act, the provisions of the ECHR are incorporated into UK law, allowing cases to be heard in domestic courts rather than in the European ones (Equality and Human Rights Commission, 2018). This highlights the government’s authority to weigh free speech protections against the maintenance of public order, including preventing the promotion of hate speech.

In R (Miller) v The College of Policing [2021] EWCA Civ 1926, Harry Miller posted a series of tweets that an individual reported as ‘transphobic’, which were later recorded as a non-crime hate incident (NCHI) by the police. The Court of Appeal overturned the earlier High Court’s decision. It ruled that the guidance set out in the Hate Crime Operational Guidance, which allowed for the monitoring and recording of NCHIs based on ‘any non-crime incident which is perceived by the victim or any other person to be motivated by a hostility or prejudice’, was unlawful. The Court found that the guidance violated Miller’s right to freedom of expression and such guidance risked have a ‘chilling effect’ on lawful speech. This metaphor underlines the potential dangers of a legal precedent that restricts an individual’s free speech rights. The Court’s decision to side with Miller shows the judiciary’s willingness to challenge government overstep on fundamental rights rather than merely deferring to it. This landmark decision marks a triumph for civil liberties advocates and sets a crucial legal precedent for the protection of free speech.

John Stuart Mill, in On Liberty, famously articulated that ‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’ (Mill, 1859, Ch. 1). This became known as the Harm Principle, which has broadly been interpreted as having two opposing functions. On one hand, it can be argued that this supports broad free speech protections, as expression should not be restricted unless it brings harm to others, meaning that controversial or offensive ideas that do not cause harm should generally be allowed. However, hate speech can be seen as causing harm to others by promoting violence or discrimination, which may justify some form of intervention on free speech.

Mill’s Harm Principle can be applied to the Court of Appeal’s reasoning in the Miller case. It is argued that the decision to record Miller’s tweets as a NCHI violates the state’s passive role, which suggests that the state should not interfere with the individual unless their actions cause genuine harm. In this case, Miller’s tweets did not cause harm but were rather an expression of a controversial yet lawful opinion, making the police’s recording of the NCHI based on a low threshold unjust. Only when this speech escalates to harassment or violence is the state’s intervention justified, as the response must be proportionate to the action.

Hate Crime and Hate Speech Laws:

There are several key pieces of legislation regulating the criteria of hate crime laws: The Public Order Act 1986 criminalises ‘threatening, abusive, or insulting words or behaviour’ with an intent to ‘cause a person harassment, alarm, or distress’ (s. 4A). The Crime and Disorder Act 1998 establishes aggravated crimes, including with racial or religious intent, as defined by ‘hostility based on the victim’s membership (or presumed membership) of a racial or religious group’ (s. 28(1)(a)). The Hate Crime and Public Order (Scotland) Act 2021 (which only affects Scotland and has no impact on England and Wales)introduces new protected characteristics of age and variations in sex characteristics, alongside continued protections for race, religion, disability, sexual orientation, and transgender identity.

The evolution of legislation from the 20^th century to recent Acts of this decade highlights how protections against hate speech have expanded to be more inclusive in the modern era. This shows a broader trend toward more precisely defining harmful speech, ensuring that there are adequate protections for vulnerable groups while supporting free speech, one of the most important cornerstones of democracy. Nevertheless, critics argue the government should provide more precise definitions and refine the list of protected characteristics to expand safeguards to more vulnerable groups. Others claim that further definitions risk over-regulating free speech and place unnecessary excessive focus on particular groups, which only serves to create even more social divisions.

The Online Safety Act 2023

The OSA imposes a duty of care on online service providers to ‘identify, mitigate, and manage the risks of harm […] from (i) illegal content and activity, and (ii) content and activity that is harmful to children’ (s. 1(2)(a)). Priority illegal content, which must be removed, includes terrorism offences, child sexual exploitation and abuse offences, and other priority offences such as assisting suicide, threats to kill, and harassment (Schs. 5-7). The ‘legal but harmful’ provision, which required providers to regulate content that is not illegal but may cause harm, was eventually removed for adults due to public backlash and concerns that it ‘paves the way to unjustifiable restrictions of free speech’ (Konstantinos Kalliris, 2024). However, this provision was retained for children, distinguishing between removing illegal content and limiting harmful content. Primary priority (harmful) content is defined as pornographic content or the promotion of suicide, self-injury, or eating disorders (s. 61), and priority content includes bullying and abuse or incitement of hatred targeting characteristics of race, religion, sex, sexual orientation, disability, or gender reassignment (s. 62). Instead of imposing a mandatory obligation to remove such harmful content, as done with illegal content, platforms must conduct a risk-assessment and put in place proportionate systems to reduce the risk of children seeing it. Additionally, the Act designates Ofcom as the regulator to ensure compliance.

The provisions of the OSA have key implications for the regulation of free speech and hate speech content online. While the Act aims to increase online protections for children, it raises critical concerns for the future of democracy. Firstly, there is a lack of precise definition of ‘harmful’. The Act defines harm as ‘physical or psychological harm’ (s. 234(2)) and content harmful to children includes primary priority content, priority content, and other content that ‘presents a material risk of significant harm’ (s. 60(2)). This impreciseness risks content being over-categorised, while giving too much power to the government of the day and the appointed regulator Ofcom to define harmful content, thus risking abuse of power and politicisation. Ofcom, as un unelected body, lacks public democratic accountability, yet the Act delegates it significant powers to control online speech. On the other hand, supporters of the Act argue that Ofcom is an independent body accountable only to the democratically elected institution of Parliament, allowing it to remain impartial and able to uphold free speech. Another criticism is that the duty imposed on service providers to monitor content may increase surveillance and threaten users’ human rights, particularly the right to privacy (Article 8).

Relating this to Mill’s Harm Principle, the Act’s duty to ‘prevent individuals from encountering priority illegal content’ (s. 10(2)(a)) may violate the principle, as it implies the duty of service providers to preemptively monitor content so as to prevent individuals from coming across certain content. This gives the government a positive role in limiting harm (active intervention as prevention), as opposed to Mill’s view of a negative role (limited interference). Therefore, there are valid concerns about the Act and its implications on free speech.

Balancing Rights in a Divided Society:

The right to free speech is a naturalistic right under Locke’s three fundamental freedoms: life, liberty, and property (Locke, 1689, Ch. 2). By definition, these freedoms are universal in nature and inherent to every human being. It is evident that government legislation has the potential to restrict this natural right, but is also capable of balancing protections in a liberal democracy. As discussed in the criticisms of the OSA, there is a need for clearer definitions and stronger safeguards to ensure accountability and transparency to the public. One means of achieving this end is through greater parliamentary scrutiny via creating an online privacy parliamentary select committee with oversight over the Act and Ofcom’s implementation. In the growing era of the digital age, particularly with the rise of AI, future steps taken to gain the trust of the public will be critical.

How the UK government should choose to regulate free speech can be taken from examples in other countries. The USA is widely regarded as having some of the strongest free speech protections under the 1^st Amendment. However, recent actions by President Trump highlight increasing concerns about restrictions on free speech. Following the fallout from the Israel-Hamas conflict, President Trump signed an executive order addressing pro-Palestinian protests and anti-Semitic incidents on college campuses, warning against deportations and the revocation of student visas (The White House, 2025). This has made non-citizens feel more vulnerable, leading them to avoid exercising their right to free speech out of fear of consequences. Unlike the USA, the German Criminal Code (Strafgesetzbuch, StGB) strictly regulates hate speech through provisions such as Section 86, which explicitly bans Nazi symbolism, and Section 130, which makes Holocaust denial and support for the Nazi regime illegal. This reflects the country’s troubling history with Nazi propaganda, emphasising its goal of limiting the spread of extremist views alongside its commitment to free speech protections under the German Constitution. While critics argue it has restricted debate and free speech, there is a growing need to prevent a repeat of the country’s past with extremism, particularly in light of the revival of far-right parties in recent elections. These examples paint a clear picture of the difficulty in balancing free speech and its downsides.

Conclusion:

Therefore, there is a strong need for the government to carefully manage individuals’ exercise of the fundamental natural right to free speech as protected by the ECHR, while also limiting the abuse of speech to incite violence or hatred against protected groups. Mill’s Harm Principle illustrates the dilemma of the extent of the state’s role, whether it should play an active or passive position in limiting harm. Moreover, the government’s implementation of the recent OSA shows a step towards regulating hate speech online and creating greater protections for children, though critics are worried about the potential for increased surveillance and the over-categorisation of free speech as hate speech. Countries like the USA and Germany represent contrasting approaches, which the UK government should take into account. Ultimately, it is clear that the government’s intervention is generally justified due to the necessity of controlling online hate speech. As we enter the digital era, public concerns about the implications of regulations on free speech must be addressed.

Reference List:

1. Council of Europe (1950). European Convention on Human Rights. Available at: https://www.echr.coe.int/documents/d/echr/Convention_ENG.
2. Equality and Human Rights Commission (2018). The Human Rights Act. Available at: https://www.equalityhumanrights.com/human-rights/human-rights-act.
3. Miller, R (On the Application Of) v The College of Policing [2021] EWCA Civ 1926 (20 December 2021). Available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1926.html.
4. Mill, J.S. (1859). On Liberty. London: J. W. Parker and Son. Available at: https://www.gutenberg.org/files/34901/34901-h/34901-h.htm.
5. Public Order Act 1986. Available at: https://www.legislation.gov.uk/ukpga/1986/64.
6. Crime and Disorder Act 1998. Available at: https://www.legislation.gov.uk/ukpga/1998/37.
7. Hate Crime and Public Order (Scotland) Act 2021. Available at: https://www.legislation.gov.uk/asp/2021/14.
8. Online Safety Act 2023. Available at: https://www.legislation.gov.uk/ukpga/2023/50.
9. Konstantinos Kalliris (2024). Online harm, free speech, and the ‘legal but harmful’ debate: an interest-based approach. Journal of Media Law. Available at: https://www.tandfonline.com/doi/full/10.1080/17577632.2024.2425547#abstract.
10. Locke, J. (1689). Two Treatises of Government. Cambridge: Cambridge University Press.
11. The White House (2025). Fact Sheet: President Donald J. Trump Takes Forceful and Unprecedented Steps to Combat Anti-Semitism. Available at: https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-president-donald-j-trump-takes-forceful-and-unprecedented-steps-to-combat-anti-semitism/.
12. Federal Ministry of Justice (2025). German Criminal Code (Strafgesetzbuch – StGB). Available at: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html.