I can't help but say at the outset that it is a very important day for the legal system in England and Wales with the announcement of Dan Sue Carr as the next Lord, chief Justice here. Um, so I'm really proud to be here giving this talk on this day. I also, at the outset reflect that this address has been given by many distinguished speakers. Um, so I hope I can live up to their standard and the expectation with this title, it is rather, uh, a broad, um, sweeping title, but I think, um, it is an important area for us to have a discussion and debate on. And there are obviously different actives. So I start on the 5th of December, 1972, which of course is some time ago. Lord McDermott, who was the newly retired Lord, chief Justice of Northern Ireland delivered the inaugural lecture named in his honor at Queens University Belfast entitled The Decline of the Rule of Law. This, of course, was at a troubled time in Northern Ireland's history when obvious issues arose in relation to the control of public disorder. I will say no more of that this evening. However, on reviewing the lecture, Lord McDermott gave, I was particularly struck by his general opening comments, which seemed to me to apply to this discussion some 50 years later. Lord McDermott said this, we know from the history of law and its institutions that the vitality and fortunes of its people are closely linked with the quality of their laws and can eeb and feel if these cease to be effectual or to serve the requirements of the society they purport to rule, and knowing that it is only prudent that we should, from time to time scrutinize the health and condition of our principle legal concepts and mark any trend or sign which might injure or imperil the common wheel. While I cannot, within the confines of this talk, deliver a fully comprehensive analysis of the current law, I will endeavor via a brief health and condition check to provide you with some thoughts as to where we are on freedom of expression. I began with a recent decision in July, 2022. The Supreme Court heard a reference by the Attorney General for Northern Ireland regarding the abortion services, safe access zones, Northern Ireland bill. In broad terms, the reference concerned the question of whether a criminal offense created by the bill of influencing a protected person within a safe access zone around a clinic offering abortion services was a disproportionate interference with the rights of those who sought to express opposition to the provision of abortion treatment services in Northern Ireland. For that hearing, I went on holiday to Italy while I was in the country, not actually in the art gallery. I'm going to mention environmental protesters from the activist group. Ultima Jena Zuni entered the Uzi Gallery and glued themselves to the glass that protects Botticelli's masterpiece Primavera. The painting, which was undamaged, was targeted because of its subject matter. It is said to represent hundreds of botanical species that bloom in spring, which the protesters claimed. We are in danger of losing the protesters also to highlight the care and attention societies give to preserving art and culture in contrast to the care and attention that is given to preserving our planet. Whilst freedom of expression itself has not altered the messages and how they are voiced have and of course of greater interest to us is how the law adapts to the changing norms of social behavior. Against this brief contextual backdrop, I begin my health check with the fundamental question, why do we protect freedom of expression? In answering the question, I think it uncontroversial to say that freedom of expression is the lode star of our democratic society and is highly valued at an instinctual level as Lord Bingham observed in the animal defender's case. Freedom of thought and expression is an essential condition of an intellectually healthy society. The free communication of information, opinions, and argument about the laws which a state should enact and the policies its government at all levels should pursue is an essential condition of truly democratic government. The framework offered in Eric Baron's text Freedom of speech also to my mind, provides a useful starting point from which to apprehend why freedom of expression is valued in our society. Broadly speaking, Baron outlines four arguments in support of the principle that speech is entitled to special protection from regulation or or suppression in brief, these are the freedom of speech one enables the discovery of truth two is crucial to the working of a democratic constitution. Three is an integral aspect of human self fulfillment, and four is necessary because of what he terms suspicion or distrust of government. Lord Bingham, in his seminal work, the rule of law alludes to the first and third of Barron's arguments when he observes. Since the publication of Milton's work in 1644, the importance of free speech has been understood. If in Britain and elsewhere very incompletely honored it is important for the reason which he gave. This is Milton through all the winds of doctrine, sorry, though all the winds of doctrine were led loose to play upon the earth. So truth be in the field, we do ingeniously by licensing and prohibiting to miss doubt her strength, let her and falsehood grapple whoever knew truth put to the worst in a free and open encounter, Lord Bingham goes on in a modern democracy where the ultimate decisions rest with the people, it is the more important that they should be fully informed and empowered to choose between conflicting opinions and alternative courses of action. Two centuries after Milton John Stewart Mill are articulated the well-known harm principle by virtue of which restrictions on the actions of individuals should be imposed only to prevent harm to others. Mill said this, the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. The only part of the conduct of anyone for which he is amenable to society is that which concerns others in the part which merely concerns himself. His independence is of right absolute over himself, over his own body and mind. The individual is sovereign with these historical foundations laid, which explain I think why we protect freedom of expression. I turn to look at where we are today in 2023. Any examination of the health of the law and freedom of expression in the United Kingdom will inevitably be undertaken through the lens of Article 10 of the European Convention on Human Rights. But purely to take Article 10 as the starting point to my mind would be to neglect the importance of afforded to freedom of speech by the common law. It is to the common law that I first turn as law justice laws observed in a case of adv advertising standards authority, limited freedom of expression is as much a sinew of the common law as it is of the European Convention. Therefore, it is worth diverging slightly at this point to consider the common law tradition of protecting freedom of expression, not least because I think it helps inform our based analysis of today in his essay, responsible Journalism and the Common Law. Lord Phillips opened by observing that lawyers like to congratulate the common law on the recognition it is always granted to freedom of speech as a fundamental right. He quotes Lord Goff in Attorney General versus the observer where he said, we may pride ourselves on the fact that freedom of speech has existed in this country as long as if not longer than it has existed in any other country in the world. Lord Phillips went on to note what Lord Bingham referred to as the land of Milton Payne and Mill and could never deny. He said, the modern Democratic imperative to allow the ample flow of information to the public and vigorous discussion of matters of public interest to the community. As Lord Phillips noted, the approach of the common law has always been somewhat different from that taken under the European Convention. The principle of liberty has meant that there has been an assumption of freedom of speech in the United Kingdom and that we turn to the law to define any exceptions to this. Think about the convention because the convention on the other hand states the fundamental right and then proceeds to qualify it. A striking domestic law statement of the importance of freedom of speech is contained in the observation of Lord Justice Hoffman as he was in Central Independent Television that a freedom which is restricted to what judges think to be responsible or in the public interest is in fact no freedom. Important and more detailed statements of the value placed by the common law and freedom of expression include the speeches of Lord Stein in a trilogy of cases decided by the House of Lords in the years immediately following the Human Rights Act. In the interest of brevity, I will confine myself this evening to only one of those cases, which I think encapsulates the point, Reynolds versus Times newspaper. In that case, the reflection of the court was on the new landscape within which the Human Rights Act sat, and that this provided the taxonomy against which questions relating to freedom of expression that came before the United Kingdom's highest court could be considered. The starting point the court told us was the right of freedom of expression, a right based on a constitutional or higher legal order foundation, exceptions to freedom of expression had to be justified as being necessary in a democracy. In other words, as the court observed, freedom of expression is the rule and regulation of speech. The existence in width of any exception could only be justified if it was underpinned by pressing social need. These, the court stated were the fundamental principles governing the balance to be struck between freedom of expression and defamation, which was the subject matter of that case. The balancing of rights, of course, is key in this area and is particularly familiar territory for me, given my background, which has been mentioned as a family law practitioner. Yet I think this area, um, is particularly challenging and in my experience requires much more than a cursory thought. I'm going to mention two examples from the family law arena briefly. First in the sphere of adoption to my mind a rather formulaic expression that the rights of the child predominate is often relied upon without much thought. It's of course right, but it's often relied upon to ostensibly validate state intervention over parental objection in adoption cases as a matter of rot, the authority for this proposition is again, often cited as a case of USF and Netherlands in that case, however, on a careful and proper read, what the court meant was that return to parental care as well as removal to state care may equally encompass and validate the rights of a child as an outcome in a given case after a qualitative assessment. The second more reasonable example, again from the family law jurisdiction I mentioned, um, is the recent court of appeal decision in, um, this jurisdiction regarding parents' rights publicly, uh, to critique doctors in very sensitive end of life cases. This was dealt with in the case of Abasi and troop. Recently in that case, each of the applicants asked the court to remove reporting restriction orders, preventing them from naming healthcare staff involved in the end of life care of their respective deceased children, each of whom had been the subject of separate end of life court proceedings. The family division evaluated the competing rights under Article eight and 10 of the convention and found that the continuation of reporting restriction orders was justified and proportionate. The Court of Appeal disagreed discharging the reporting restriction orders. It found that the intense focus on the specific rights being claimed delivered the clear conclusion that the Article 10 rights of the parents in wishing to tell their story outweighed such. Article eight writes of clinicians and staff, as might still have been in play on the international play in which I want to turn to briefly, article 13 of the UN Convention on the Rights of the Child specifically protects the child's right to freedom of expression. Child, children, of course, are independent rights holders who have a voice within court proceedings subject to an obvious check that no harm is done. We saw this principle in action in a case of rew, which is from 2010, when the Supreme Court reformulated the approach a family court should take when in exercising its discretion regarding whether a child should give live evidence and family proceedings. In so doing the court removed the rarely, if ever, rebutted presumption of the previous law that only in the exceptional case should a child be called and settled for an approach of balancing the various interests in play. The Article eight writes of the Child and the article, six Rights of a Parent Accused of Harm. The debate on these issues will I expect continue. So having meandered through the common law and taking a short diversion into balancing rights, which um, is obviously very important in this discussion. I return to the Article 10 Pathway, as we know, article 10 and encompasses the freedom to hold ideas and incorporates the right to receive opinions and information as well as the right to express them as the European Court of Human Rights said. In its seminal 1976, judgment in Handyside versus the United Kingdom, freedom of expression constitutes one of the essential foundations of democratic society, one of the basic conditions for its progress and for the development of every man nowadays that would read every person I suspect. But nonetheless, this picks up on the common law, uh, themes that I've already mentioned. Unlike other qualified convention rights, article ten two specifically states that the exercise of the freedom carries with it duties and responsibilities. As an aside, I also note that Article 10 has the distinction of being the first provision in a human rights instrument to restrict freedom of expression. The European Court of Human Rights has consistently held that freedom of expression constitutes this essential foundation. Subject to paragraph two of Article 10. It is applicable not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but to those that offend shock or disturb. I think we have to remember that this satisfies the demands of pluralism, tolerance and broad mindedness without doubt, without which there is no democratic society. I want to turn, um, briefly then to the types of expression that have been identified by the European Court of Human Rights. The highest degree of protection is afforded to political ex expression, broadly defined to include comment on a matter of general public interest. Less rigorous protection is afforded to the other two categories, identified artistic expression and commercial expression. By way of additional comment, I note that the European Court has consistently emphasized that there is little scope under Article ten two for restrictions on political expression or on debate on questions of public interest. Correspondingly, the limits of acceptable criticism are wider in the case of politicians acting in their public capacity than they are in the case of private individuals since the case of Sunday Times versus the United Kingdom. The approach to determining whether an interference is justified as comprised three stages, which I'm sure are well known to many of you, that is whether one, the interference was prescribed by law two, it pursued one of the legitimate aims within the meaning of Article 10, two and three. The interference was necessary in a democratic society in the majority of cases. Of course, it is this final third question which determines the court's conclusions Just at this point, I I had noted the, um, issue, uh, in relation to constitutional settings and in particular the differences that pertain in relation to freedom of expression in the United States of America, so hopefully have some interest to the American guests here. Barnes Hale in a case, um, uh, noted that this was, um, an apt observation by way of comparison, um, and in some cases, uh, to coin a phrase, uh, that, that she used restrictions on political advertising have a tough time getting past the first amendment. Freedom of expression issues have arisen in many domestic cases, which by their nature involve matters of significant public concern and controversy. In one such line of cases, the United Kingdom courts have considered the relationship of the criminal law with the rights guaranteed by Article 10 at times, alongside the rights, uh, guaranteed by articles nine, which is freedom of thought, conscience and Religion, and Article 11, freedom of Assembly and Association. Over the course of the cases that have come before the court, it seems to me that the need has been demonstrated to adopt a nuanced approach, um, and this has emerged reflective of the context in which the issues have arisen. At the outset of this talk, I mentioned the United Kingdom Supreme Court case, which decided the Attorney General's reference in relation to safe access zones. This was an ante challenge which asked the court to consider the compatibility of a bill prior to Royal Ascent. Pursuant to specific provisions of the Northern Ireland Act 1998, those provisions, uh, section six require any legislation passed by the assembly to comply with the European Convention on Human Rights, and this is fertile ground for, um, litigation once the Northern Ireland assembly was not able to deal with the substance of abortion reform, which is a highly controversial subject matter in Northern Ireland, and MLA introduced this bill post Westminster legislation, which provided for the services in the jurisdiction in the case. Among other things, a number of overlapping questions were raised in relation to previous decisions regarding Article 10, particularly the case of Ziegler and the case of Kurion, which dealt with, uh, protest the judgment, um, categorically confirms that during a criminal trial, it is not always necessary to assess whether a conviction for an offense would be a proportionate interference with a particular defendant's rights under articles nine, 10, and 11 of the convention. I think to summarize it, what all of this means is that the ingredients of an offense canon themselves ensure that a conviction can be compatible with these convention rights. This may be the case, even if the offense does not include a defense of lawful or reasonable excuse. The assessment of whether an interference with a convention right is proportionate, is not an exercise in fact finding, but rather involves the application of a series of legal tests in a factual context. As a result, it does not necessarily need to be conducted by the body responsible for finding the facts at the trial. In the case, I've mentioned the access zones case, the Supreme Court began by considering whether a clause which was brought to the attention of the Court for Adjudication restricted the exercise of rights protected by articles nine, 10, and 11. It is of note that not all activities falling within the scope of this clause five were protected by those articles. This, um, makes logical sense because some of the behavior, um, that was, that was suggested by protestors described in the evidence before the court such as spitting at individuals chasing, threatening, and assault, um, fell within the ambit, um, of, uh, other clauses. But the point in this case was in relation to other types of behavior such as holding a vigil, um, engaging in other non-violent demonstrations, the Supreme Court was satisfied that the clause imposed a restriction on behavior falling within the scope of one or more of articles nine to 11. So the articles were engaged, the court was satisfied also that the restriction was prescribed by law and pursued a legitimate aim. The remaining issue was whether the restriction was necessary in a democratic society to achieve the legitimate aims pursued. In other words, whether the restriction was proportionate. The court approached that question in the customary way by breaking it down into the elements, um, that we know from the Bank Miller Test in relation to proportionality comes down to fair balance in considering the balance of the competing rights in this case, there were a number of considerations that were of particular importance. These included, of course, the article Elliot rights of those using the clinics, people who were self-evidently vulnerable and for whom exposure to even wholly peaceful advocacy by those opposed was bound to be distressing against that, the right to articulate opposing views. Of course, the point to note about this case is that the bill did not prevent the exercise of any right protected by articles nine to 11 of the convention, but imposed a limitation upon the places where those rights might be exercised. The decision in Applebee versus the United Kingdom establishes that there is no freedom of forum. Legislative restrictions on the location of a protest or demonstration do not destroy the essence of the rights protected and consequently attract a wider margin of appreciation than outright bans. A wide margin of appreciation is generally appropriate in situations where it is necessary to strike a balance between competing convention rights, especially in a context such as abortion, which raises sensitive and controversial questions of ethical and social policy. So ultimately the court concluded that the reference should be answered in the negative. The referred provision of the bill was not incompatible with the convention rights of those who seek to express opposition to the provision of abortion services in Northern Ireland. Even though the clause under scrutiny was directed against nonviolent protest, it wasn't an area where women wish to access medical services. This case tells us where we are, I think with freedom of expression cases by applying of course a general measure approach, if the law itself strikes the right balance, there is no necessity for a further proportionality exercise to be undertaken. That was clearly the outcome in the case, um, of safe access zones, but it seems to me that issues may arise in areas where the law is not so bespoke. Cases involving so-called hit speech, um, or cases in an area where I think particular challenges arise, which I want to discuss in a little detail in Northern Ireland. Criminal prosecution for incitement to hatred has been a feature of our law for a considerable period with legislation dating back to the prevention of Incitement to Hit Act, which is a 1970, uh, act. A more recent incarnation is found in the public order, Northern Ireland order 1987, that contains offenses relating to the or display of threatening, abusive or insulting words or behavior with the intent or likelihood of stirring up hatred or fear, uh, towards or among specified groups of persons defined by religious belief, sexual orientation, disability, color, race, nationality, including citizenship or ethnic or national rights. And this 1987 order also contains publication type offenses in the same context. Additionally, in terms of law's reaction to this, uh, growing area, the Communications Act 2003 by section 127 criminalizes the use of a public electronic communi telecommunication service to send messages which are grossly offensive, indecent, obscene or menacing. This includes telephone calls, an issue considered in England and Wales in a case of DPP and Collins where racially offensive terms were used. That case, which remains off cited, makes it clear that a high threshold is required to sustain a prosecution. A communication has to be more than simply offensive to be contrary to the criminal law. The content expressed in the communication may be in bad taste, controversial, unpopular, and may cause offense to individuals or a specific community, but this is not in itself sufficient reason to engage the criminal law. So in this arena of the criminal law, I turned to the fact that, um, the provision I I've just mentioned gave rise to a number, um, of high profile cases in Northern Ireland, one of which I'll briefly me, uh, mention, which was a prosecution of a well-known pastor in 2016. The matter was heard at the magistrate's court level by a illegally qualified district judge sitting alone, as is the practice in Northern Ireland. The subject matter was briefly a pastor who preached at a metropolitan church in Belfast, uh, in and around this time, preached a sermon that was broadcast over the internet, uh, during which among many other things, he said out a mistrust of, uh, Muslims in very strong terms, and this was a, a, an important case in Northern Ireland. Um, uh, highlighting the issue of free speech. Ultimately, the prosecution conceded and the judge held that the defendant was entitled to express his views as they were protected by articles nine and 10 of the convention. And this, uh, pastor was ultimately acquit acquitted. The district judge found himself in agreement with Lord Justice Laws who said in the, uh, chambers case that the courts need to be very careful not to criminalize speech, which however, contemptible is no more than offensive. Whether speech is offensive or not will of course depend on the facts of an individual case. More recently, the Northern Ireland Court of Appeal dealt with the issue of hit speech in a case of Brown versus pps. This prosecution was brought onto the public order, Northern Ireland order 1987, and concerned the distribution of a leaflet on behalf of a far-right political party complaining about an influx of migrants into a small town in Northern Ireland and commenting on their, uh, behavior, perhaps predictably, the Article 10 argument only arose at a later stage before the appeal court. I pause there to express some sympathy with lower court, uh, judges who in this case and in other simply don't get the argument that appellate court judges do, but the case was ultimately remitted by our court, um, for lack of reasons, the court concluding that Article 10 was engaged. So the Article 10 argument was entirely missed, um, at first instance and on appeal, um, but rather than look at it ourselves, um, it was right, I think to send this matter back to the, the first instance court to consider. It's not an easy task, but nonetheless seemed to me to be the right approach. If I just break down what that case was about, I think it brings home where we are in this arena difficult arena of hate speech. The core issue for the court of appeal was based upon the principle that political speech, and, and bear in mind I've already defined that as speech, which engages the public interest and public interest issues, so that political speech qualifies for enhanced protection in order to qualify. Of course for political speech, it is not necessary that the speaker holds a political office and nor does it follow that because the speaker holds a political office, the speech automatically, um, attracts protection. It is for the court in each case to assess whether or not the speech is on a matter of public interest or debate, and that was overlooked in this case at first instance. In that regard, there are some cases of interest, and this is a developing area. There are cases coming, um, thick and fast, uh, on different subject matter, but there's some cases that I would mention Willem and France and Faray and Belgium. These cases demonstrate that politicians who abuse their parti, uh, position in order to stifle public debate or to promote their personal prejudices, will lose the enhanced protection. It is clear to my mind from the jurisprudence in this area that the European Court of Human Rights acknowledges that each state, of course, has a margin of appreciation in respect of the restriction of the right to freedom of expression subject to supervision by Strasberg. This means that the court will review the inten intensity of the analysis of the nature of the speech and the corresponding strength of the ground upon which a restriction is proposed, where the analysis and reasons for the restriction are explained. Bearing in mind the applicable European case law, the European Court of Human Rights will not normally interfere with the proportionality assessment made by the domestic court. Proportionality also plays a role in the extent and nature of any interference with the right. What I think is clear also from these Northern Ireland cases is that context will determine the outcome. In cases where there clearly are competing interests, there is a strong imperative to carefully consider the arguments and analyze the facts in order to strike a fair balance and reach a convention compliant outcome. But whether or not offending speech is criminal will depend on a careful analysis of each case applying the law, and, uh, crucially considering whether any interference with this fundamental convention right is supported by relevant and sufficient reasoning, as these two examples illustrate the law relating to hate speech is a complex and developing area to my mind, particular definitional issues arise. Um, I raise, I raise three particular issues. Intent is not required in every circumstance. The law potentially targets an emotional state of hit hatred. Perhaps most fundamentally, the severity threshold may not be simple to set. One might also in passing inquire what implications there might be from all of this for a defendant's rights under Article seven of the convention. Since the risk may be that the criminality or otherwise of a particular statement in a particular context may only be capable of being determined by an ex post facto analysis, the conclusions of which will not have been available to the defendant. When the statement was made in December, 2021, the Law Commission of England and Wales published its hit crime final report to which government, uh, response remains pending. The report looks at who should be protected by hit crimes, including whether the range of existing protected characteristics should be expanded to include, for example, sex and gender characteristics. It also looks at how hit crime laws should work. The report notes that the commission's public consultation on hit crime received a high proportion of responses from individual members of the public, signifying the interest in this area, but a significant majority of whom indicated strong opposition to hit crime laws altogether or to any extension of, of those that currently exist. By contrast responses on behalf of organizations wherein the main supportive of the broad direction of the proposals, the commission notes that the lack of community consensus for hate crime laws is an important consideration in any calls to widen the scope of such laws. And of course, that makes sense. While the commission considered and decided against recommending that sex and gender be added to the list of protected characteristics within the hit crime framework on the basis that it would be the wrong solution to the problem, it did recommend that an offense of stirring up hatred on the basis of sex or gender should be created in response to the growing threat of ideologies, uh, that were prob that are problematic in society and how these can potentially lead to serious criminal offending. The commission considered that this is one context where existing hit speech offenses may be usefully adapted to address, for example, extreme mis uh, misogynistic content. I think it's interesting to look at this report as a whole because of course, it remarks on the fact that the Public Order Act in England and Wales, which replicates the public law order in Northern Ireland I've referred to, uh, was enacted in 1986. The report recommends ultimately that the existing protection for discussion and criticism of religious practices also should be extended to cultural practices and a new protection introduced for discussion and criticism, um, of, or expressions of antipathy towards individual countries and their governments and for discussion and criticism of immigration, citizenship and asylum policy. These are, of course, very difficult, sensitive, currently controversial issues. I want to say one more thing about, um, this area because interestingly, in 2019, within a Northern Ireland context, the Department of Justice commissioned a judge led independent review of hit crime legislation in Northern Ireland that was, uh, undertaken by a retired judge and the Marin Report, as it's no one contained 34 recommendations and was published in December, 2020. In July, 2021, the Minister of Justice indicated that she accepted 23 of the recommendations wholly, partially, or in principle, and that the remainder required further consideration in contrast to the Law Commission. The Maron report actually did recommend that gender should be a protected characteristic. Um, it goes on to refer to how the public order legislation has really not remained fit for purpose due to changing social conditions. But interestingly for me, this report recommends that there should be no express defenses for freedom of expression in relation to protected characteristics, but there should be as a mirror formal statutory recognition of the importance of Article 10, freedom of expression, rights, and all other rights guaranteed by the convention in particular rights guaranteed. Under Article 6, 8, 9, and 14, the differing approaches recommended by two reports from separate United Kingdom jurisdictions prepared close together to my mind, shows just how complex it is to determine the boundaries of freedom of expression around hit speech and to define law. I want to move finally to, um, a last area that, um, I think is important when discussing this issue. It relates to the digital age. The fact that we now live in a digital age, of course, adds a further layer of complexity in terms of freedom of expression. Advances in digital technology have been an extraordinary force for individual liberation with more and more information available to more and more people, and there are obvious benefits, uh, to these advances, but also a downside which becomes increasingly apparent. I think with time, the development of the internet has resulted in a very significant loss of control of personal data, and it has provided a platform for instantaneous global dissemination of material which may be considered defamatory and opportunity for the dissemination of extreme and violent views, and of course, the creation of so-called fake news. I think it's fair to say that regulation of internet material has been a struggle in recent times of interest to me is how misinformation as a concept has now been overtaken by disinformation. In 2022, the European Union strengthened its code of practice on disinformation. The emphasis there is of course, upon platforms regulating themselves rather than law. This means that platform owners effectively adjudicate upon freedom of expression in the first instance. What can and what cannot be removed, where a breach of contract lies, perhaps it is an algorithmic formula that is applied. The worry there is that context may be lost, and so unjustified censorship may occur. Courts and legislatures have already had to wrestle with a wide variety of technologically challenging issues in the field of electronic communications and will probably either have to adapt conventional approaches or to develop new ones to say to it that the rule of law prevails and fundamental rights are suitably vindicated across the ever expanding trans jurisdictional universe that is cyberspace, a sphere in which apparently sinister forces lurk to manipulate and distort the truth and to jeopardize the exchange of genuine information and opinions, which of course is the very object of the right to freedom of expression. I can offer no concrete solutions to these issues, but I mention them as part of the necessary consideration, which should accompany any health check. This is an area which will require careful and detailed analysis across a range of collaborating disciplines and agencies to ensure that the core values of civilized society are not thrown into hazard. Returning to the McDermott lecture series I referenced at the outset of this talk judge, uh, Shifra Ri, president of the European Court of Human Rights gave the 2022 lecture in Belfast entitled Democracy Expression and the Law In our Digital Age, judge O'Leary highlighted the difficulties in regulation of unlawful forms of speech and the emerging concerns about the spread of misinformation in a democratic society. And she said this, the court has had to grapple with the conflicting realities to which the internet and new technologies give rise. It is recognized on the one hand that user generated expressive activity on the internet provides an unprecedented platform for the exercise of freedom of expression. On the other hand, the internet can act as a forum for the speedy dissemination of unlawful forms of speech which may remain persistently online. So as I approach the end of my health check, I ask once more, where are we with freedom of expression? My final thoughts are these clearly, as I've said, we are in a digital age of conflicting realities where we have to consider if and how to regulate online expression. This, I believe, will dominate our law in years to come as we debate freedom of expression and privacy, the protection afforded to political speech and the boundaries of hate speech. We also live in an age of protest. There is, of course, nothing inherently wrong with the exercise of freedom of expression in a healthy democracy. People young and old, demonstrate time and again that they are well clued into their rights and to what they want to say. The freedom to do so is part and parcel of the rule of law. However, there are boundaries which the law must try to regulate. The principle underpinning any restriction on the right to freedom of expression is of course, I think rooted in the harm principle, which I discussed at the outset. Courts must also consider and properly calibrate the meeting point of particularly Article 10 rights and other rights such as Article Eight, rights to a Private Life. In increasingly, I think the conversation has unfortunately also had to turn to consideration of Article 17 of the European Convention on Human Rights, which provides for prohibition on the abuse of rights. So to conclude, and thank you for bearing with me, um, I will summarize by reiterating two points and offering one recommendation. My first point unapologetically stating the obvious is that freedom of expression remains a foundational and indispensable feature of our democratic tradition, and one that enjoys a long legal and cultural heritage, stretching back to the beginnings of the Western Democratic ideal. As the fifth century BC Athenian Ides observed in the Phoenician women, this is slavery not to speak one's thought. It is no accident to my mind that Milton named a celebrated treaties on free speech referenced earlier after that ancient Athenian Council where he considered free commerce in thoughts and ideas was an accepted and important norm that heritage and history is suitably illustrated in the United Kingdom today, in the special emphasis laid upon the freedom of expression by specific safeguards going beyond the language of Article 10, which parliament enacted in section 12 of the Human Rights Act 1998. My second point, which flows from the first, is that the law must adapt to our changing times, particularly to the digital age, which frames how we communicate and the dissemination of ideas. With this, the complexities of regulation have become apparent. One question that springs to my mind is whether self-regulation is working. I've already alluded to this, into the pressing need for I think disciplined research, clear sidedness and flexible thinking to meet the challenges ahead if the law is going to continue to be effectual and to serve the requirements of society to borrow Lord McDermott's terminology. And finally, um, my recommendation for what it is primary schools teach children about the rights they have under the United Nation Convention on the rights of the child schools refer to the, uh, themselves as respecting these rights, the right to freedom of expression and other rights. To my mind, we might want to think about building on this ethos and encourage the teaching of law in schools to inform debates such as this, at the earliest stage, who knows a topic such as freedom of expression might even capture the imagination of our young people more than calculus. I I say this with apologies to the mathematicians among you, um, but that's my final word on, on this topic. Um, I appreciate that I, as I said, have provided, bought a health check. I hope it has been of interest to you, um, and that it will at least engender some further discussion. Thank you very much for your attention. You, you all have, um, engaged with great concentration that I've watched as I've gone along, and thank you very much for that. It is very comforting for a speaker to see an audience listening, so thank you. Um, it, it really has been a pleasure and an honor for me to be able to deliver this address with all of you here in person. Those watching online and in particular my friends from the legal community who are here and have joined me. So thank you very much. Thank you very much. Dame Shavonne must say makes me appreciate once again how wonderful it is to hear family court judgements, which are all this delivered with such clarity and elegance. Thank you. It was delightful. You, um, one of the striking things that, uh, about your talk is this balance. At one point you said separating, um, contemptible from offensive, and it, it's sort of easy to see how a judge might have to make that balancing act, but the law is frequently made by politicians upon which you have to base your subsequent judgments. Yeah. And I am struck by the rate of change we've had at the moment. How can the law politics and the judgements that you have to make move fast enough in that environment? Yeah, uh, good question. Um, I think this is where the safe access zones highlights the general measure, uh, approach. Firstly, on a bespoke piece of legislation, when you get into looking at how you adapt the law to the modern world, I think the, um, difficulties arise with pieces of legislation like the public order legislation I've referred to from the 1980s, which is hard to fit some of the current circumstances, hard to fit, um, the digital era, hard to fit, um, some of these boundaries of, um, offensive versus inoffensive and the law. I mean, the law has to keep up and develop, and the courts will also have to bear in mind, um, social conditions. There's no easy answer to this <laugh>. I mean, as I said, it's a, it's a, you've got the fundamental principles. You've got to adapt to what's happening in society. The law has to do its best to strike the balance at the outset if it can, or if you're in a circumstance where you're going to have to undertake a proportionality challenge, which I think I've explained, will not be in every case, will not be necessary because the ingredients of the law will have already provided that, um, you, you simply have to do that. Um, you have to take into account obviously, competing rights and look at the factual matrix. That's probably an in elegant way of saying it's, it's difficult <laugh>. Yeah. I often read the newspapers that someone's been, uh, sent down for inciting hatred. Now, I'm curious about this because they never seem ever to produce anybody in court who admits that they have been so incited. So it's really a speculation, isn't it, that something that somebody says will incite hatred if you don't, in the court also produced somebody who has been incited. Yeah. And yet I never seem to read that they ever, uh, have anyone in court who says, yes, I was incited to hate by this. Yeah. So it seems odd to me. Have you comment. Yeah. Well, I think what you're really driving at is the evidential foundation for, um, a particular case. Some of the cases I think the courts have looked at on the basis of the information that they have objectively. Uh, I, I don't in in other cases, um, for instance in the, in the Brian Case, that, that I heard, uh, which I think is probably common with a lot of the cases and why you've made the point, the facts were actually agreed. So, um, this is a criminal prosecution where the facts were agreed in relation to the nature of what had happened, what the, what the leaflets were designed to do. The judge then had the unenviable task of deciding did that meet exactly what you've pointed to incitement or stirring up, and that is difficult because you have to go back to work out, um, how that might be, how that might affect the community. But I don't think you necessarily have to, um, have, um, a, a a, a sophisticated evidential framework in a lot of these cases. You, you're right, because in a lot of them, the evidence is, is largely agreed therein. It seems to me the challenge for judges becomes even more acute. And why, in that case of Brian, um, I remitted, I remitted the case because I wasn't satisfied that the judge had looked at the questions of the effects of the behavior. A a lot of your, um, discussions started off discussing the European Court of Human Rights and the framework from various articles that you quote from, I mean, clearly post Brexit, politicians have, or during Brexit debate taken big hit towards the European Court of Human Rights. Has that had much impact in how you as a senior judge are interpreting the law? I don't think so. Uh, I mean, as a judge, I will, um, apply the law. I do not comment on issues of policy or debates about where the law might go. I, I have to apply the law. Um, I mean, I think there's sometimes a confusion about exit from the European Union and what the European Court of Human Rights is and does, um, which I think people need to bear in mind, but I don't think, no, I I wouldn't say it's changed the outlook in terms of the rights based jurisprudence that we have. Sir, could you just wait for the microphone for us for a moment? Uh, thank you so much for an absolutely absorbing lecture. Um, turning to the common law, and in a sense, the corollary to hate speech, which is cancel culture, uh, we've seen in the crucible of truth formation, which is our universities lecturers hounded from their livelihood. Yeah. Whilst the authorities who should be supporting them do nothing. Um, without going into any specifics, of course, what are your thoughts about what remedies might be, uh, developed for victims of cancel culture? Hmm. Well, in this area, I read an interesting article which talked about, uh, providing Milton to, uh, people who were the, the text to people who were, um, taking this line. Uh, I think this, I think the issue there has to be driven by leadership. Um, the, um, there are lots of policy issues within the organizations that you've talked about that are wider than I think probably my remit. But, um, I go back to education, actually, I go back to an understanding of what I tried to say from, um, you know, our common law tradition and what it means to be able to hear opposing voices and, uh, voices that perhaps didn't win the political debate, which led to say legislation being passed, the, the, um, the stifling of freedom of expression is something that we have to be alert to. I'm not sure I can say much more about how we do that, but it's a good question. I possibly, my question is really gonna be a rephrasing of the first one you had ultimately is an inflammatory and imprecise concept, like hate compatible with a, with a, an evidence-based legal system. Yeah, I, I, I think I, I think I said to you, I do find some definitional issues here, and that's why I think the Law commission and the report that we have in Northern Ireland is looking at better definitions, how challenging that is, is apparent. If you read the report, um, I, I, I, I mean, there is a certainty argument, which is what you're tapping into, but I don't think that really militates against trying to regulate, because otherwise you don't deal with something that is acute in our society that needs dealt with somewhere. It's just that the legislation that we have isn't bespoke to the particular issues that are now arising in a, you know, a changed world. So I wouldn't, you know, I I, I wouldn't say that we give up in this area. It's, it's a modern challenge. It's, it's very interesting that the, some of the hate speech that we see now is actually being banded about within the political community and the sort of, I asked the question about whether there's a role or an emphasis or a responsibility, a greater responsibility on the independent judiciary under those circumstances we see in totalitarian, totalitarian states that kind of freedom of speech collapsing very quickly at the moment. Yeah. Um, do you think that because of the way some politicians are banding about hate speech, if you like, yeah, I'll call it that loosely, is actually an increasing threat to both democracy and the independent judiciary? Um, well, I think, uh, if you look at some of the cases, the, the case I mentioned, Willem and Foray, you'll see what the European Court of Human Rights has said about the boundaries here. That the protection, um, afforded to political speech is obviously not absolute. And I think the court, as I hinted at, is looking at Article 17 in this arena. So you can't invoke your convention, right, if you're abusing, um, the provisions of the convention. Um, a as far as, so I, I, I think you're, you're finding some fairly strong statements from the European Court of Human Rights in this area, um, which, you know, is a product of, um, uh, judicial analysis of these issues. Um, but I, I, I don't see it as a, as a, um, as a, as, as an issue that erodes the independence of the judiciary. In fact, I think it probably strengthens the independence of the judiciary as the bill war to, um, adjudicate in this arena, um, independent obviously of the executive. Thank you. Well, thank you very much for absolutely wonderful and stimulating hugely clear lecture. It's been a delight to have you here, a great honor. And, uh, ladies and gentlemen, I'd like to thank Dam Chavo in the usual way, and then afterwards you're allowed into the courtyard for a drink. Thanks.