Speech and Human Rights

With Alice Gardoll

I am so fortunate to be the Editorial Assistant for an upcoming book edited by Amal Clooney and Lord David Neuberger on freedom of speech in international law, and to jointly author some of the book’s chapters.

We’ve tried to do three things with the book. First, to survey how states currently use the law to respond to different types of speech—hate speech, misinformation, whistleblowing of official secrets, incitement to terrorism and defamation— and to shine a light on precedent setting examples, from Julian Assange to Maria Ressa.

The approach we’ve taken, that I think is a really important one, is to start off with the basics: what are the minimum obligations that each state has? Because many states, democratic ones included, aren’t even meeting those, let alone taking legally controversial steps.

Take, for example, the provisions of the U.S. Espionage Act which mean that Edward Snowden cannot even bring an argument before a court that his groundbreaking disclosures were in the public interest. Or the Australian Federal Police raiding the ABC after they reported allegations of war crimes in Afghanistan which an independent inquiry has since found to be credible. Secondly, to clarify what the right to free speech actually means under international law. This is surprisingly challenging! There are so few resources that have taken a global approach which addresses the spectrum of speech offences rather than just one or two.

Finally, where gaps and disagreements exist within the law we have sought to make recommendations for reform. The Co-Editors of the book have brought a wealth of experience, pragmatism and thoughtfulness to what is a huge topic – I hope it becomes a useful tool for lawmakers, journalists and activists around the world.

Before we get to the more divisive elements of speech, so much can be done in this space to protect journalists and dissidents that should be entirely uncontroversial and in keeping with existing obligations.

I also think it’s important to think of speech as part of the broader spectrum of human rights. I am someone who believes passionately in the importance of restorative justice and addressing mass incarceration in this country and across the world.

Whilst free speech can sometimes be pitched as a conservative issue, on the flip side it’s crucial to remember that more punitive measures against speech will disproportionately impact marginalised communities in the same manner as the rest of the justice system.

earned her law degree from the University of Sydney, before working as a public interest lawyer in Australia and abroad. She practiced as a public defender for the North Australian Aboriginal Justice Agency, representing Aboriginal Australians living in the remote Northern Territory. She has also volunteered as a refugee lawyer in Sydney and in a refugee camp on the island of Samos, Greece. Alice began her career as a commercial litigator and a clerk to the president of the NSW Court of Appeal. She undertook her Fulbright Scholarship at Columbia Law School, focusing on human rights and racial justice issues. Her current role is as a Senior Lawyer in the Office of Amal Clooney.

This is my first proper foray into more academic writing, as my background – and my true passion – is in client-focused lawyering. As a result, something I find challenging about this project is trying to make sure it is as impactful and practical as possible whilst also being thorough, objective and principled.

However, this is also what makes this project exciting and a growth opportunity for me. Turning up to court every day as I have done in previous roles, losing more than you win and not having an opportunity to strategically tackle fundamental flaws in the legal system can be incredibly frustrating.

My hope is that even though academic work can sometimes feel more removed from the courtrooms and newsrooms of the world, it can have a much greater strategic impact.

I think where we draw the line should depend on harm.

We know that misinformation, including about vaccines or fake cures, has had dramatic, real world consequences.

But we also know that governments have been misusing ‘fake news’ laws to stifle legitimate concerns about COVID-19. This began at the pandemic’s very inception: Dr Li Wenliang, a doctor from Wuhan who issued one of the first warnings about a new virus was detained by police for ‘spreading false rumours’, and later died of the virus.

This is a critical point – I think it is the responsibility of Western governments to make sure that they are abiding by minimum international standards to ensure that autocratic regimes cannot use our laws as justification to enact their own repressive and speech-restrictive policies.

We’ve seen that with European countries enacting strict laws with huge penalties against social media companies that have been quickly replicated by nations such as Russia and Turkey. I think it’s important to recognise that speech can result in serious harm and endangerment of human life, but that it is only when speech reaches that very high bar that it should be sanctioned – and even then by the least intrusive measures possible to neutralise the threat.

There is a big difference between freedom of speech and freedom of reach, and I think there is a lot social media companies can do to limit the damage of misinformation without sacrificing an individual’s right to speak.

This of course applies across the board in relation to the erosion of all human rights, but is particularly troubling with speech, because a law doesn’t need to be used to chill speech, sometimes it is enough that it is on the books at all.

My answer here is the same for speech as it is for all human rights in Australia:

Right now Australian lawyers are fighting —for journalists, for refugees, for climate activists, for Aboriginal and Torres Strait Islander people who are incarcerated in completely unacceptable numbers—with one hand tied behind our back. We do not have the basic human rights tools to hold governments and other powerful actors to account.

I firmly believe that a Human Rights Act would give us a chance to support impacted communities and allow individuals’ freedom of speech to flourish.