Monday, 10 October 2016

Is there a right to offend?

There is a certain fashion for saying, in its negative expression, that we have no right to be protected from others giving offence to us; or, in the corresponding positive expression, there is a right of one person to act or speak in a manner that gives offence to another. I heard it again the other day, expressed by a BBC radio interviewer.

Now there is certainly a prudential judgement to be made as to whether or not the giving of offence should be proscribed by law, and thereby attract a criminal or civil sanction before the law. This arises because the law would find it difficult to distinguish between legitimate difference of opinion and an offence of giving offence, however the latter might be defined. So the law, at least in this country, does not proscribe offensive language used towards another and, instead, remains silent on the matter.

But does the absence of legal proscription thereby confer its opposite - that is, does it confer a right to carry out the action that it does not proscribe? Many would believe that it does. A reading of the UN Universal Declaration of Human Rights would, in my view, suggest otherwise.

Its preamble argues from the "recognition of the inherent dignity .... of all members of the human family", while Article 1 argues that all persons "should act towards one another in a spirit of brotherhood."

Article 12 reads: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

Article 12 has a particular bearing on Articles 18 and 19, which propose the freedom of religious belief and the freedom of belief and expression. Neither of these freedoms can be effectively exercised if people are subject to abusive behaviour or language in their regard; that is, if through attacks on the honour and reputation of their religious or political community, people are subject to mediated attacks on their individual honour and reputation.

Now the content of one person's religion or belief might be such that it is offensive to the religion or belief of another (which is the difficulty that the law faces in proscribing offensive language and behaviour). The expression of difference of opinion in this respect might give rise to offence in a very qualified manner as regards the content of what is expressed. But the recognition of the dignity of the person in the other, and regard for his or her honour and reputation, certainly constrains the manner of the expression of difference. And in this sense, I think the UN Declaration should suggest to us that, no, there is not an unqualified right to be offensive towards others.

Whilst the proscription of the law might extend only to hate crime based on certain protected characteristics, and not to offensiveness itself, there remains the obligation, articulated in human rights instruments, for citizens to maintain the dignity of others, and to respect their honour and reputation. The lack of legal proscription makes the responsibility of the citizen in this regard all the more important.

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