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Protect Freedom of Expression

Human Rights Watch remains concerned about the criminal offense of “encouragement of terrorism” introduced by the Terrorism Act of 2006.⁴⁶ In the debates leading to the Act’s adoption, the government failed to convincingly demonstrate that this measure is necessary given the array of offenses already at the disposal of crown prosecutors.

Recent prosecutions based on long-standing criminal offenses demonstrate that ordinary criminal law is capable of sanctioning speech that is said to incite violence. In separate trials, two men were convicted of inciting racial hatred and two others to soliciting murder (one of them was also found guilty of inciting racial hatred) for statements made during a February 2006 protest outside the Danish Embassy in London against the “Danish cartoons.”⁴⁷ 

Human Rights Watch understands that to date two people have been charged with encouragement of terrorism.  Attila Ahmet (also known as Abu Abdullah) was charged in September 2006 while Abu Izzadeen was charged in February 2007. They have not yet been tried.

The definition of the encouragement of terrorism offense is overly broad, raising serious concerns about undue infringement on free speech. The offense covers statements “likely to be understood…as a direct or indirect encouragement or other inducement to…the commission, preparation or instigation of acts of terrorism,” including any statement that “glorifies the commission or preparation (whether in the past, the future or generally) of such acts.”⁴⁸ The right to freedom of expression is a fundamental right understood to ensure the freedom to hold opinions and to receive and impart information without interference. While recognizing that this right may be limited under certain circumstances, the European Court of Human Rights has repeatedly asserted that freedom of expression “constitutes one of the essential foundations of a democratic society”.⁴⁹ 

According to the case law of the European Court of Human Rights, governments must convincingly demonstrate that a measure that interferes with free speech is both necessary and proportionate. But the breadth of the speech covered by the offense and the imprecision with which it is drafted, mean that it is likely to fail the test for legitimate interference with the fundamental right to free expression as applied by the European Court of Human Rights.

The vague definition of the offense of encouragement of terrorism violates the principle of legal certainty enshrined in article 7 of the ECHR requiring that laws must be of such precision that people are able to regulate their conduct to avoid infringement. The fact that a speaker may commit the offense not only when he or she intends the speech to encourage terrorism but also when he or she is “reckless” as to the impact of the speech underscores the lack of legal certainty. A final concern is that the Terrorism Act 2006 requires no causal link between the offending speech and actual encouragement – it suffices that members of the public, anywhere in the world, are likely to understand the speech as encouragement or glorification of terrorism.

There is little or no evidence that criminalizing such speech will deter terrorism, while there is very strong evidence that it will deter free expression through a chilling effect that provokes self-censorship and inhibits political discourse, including criticism of the government.  The special offense of encouragement to terrorism should be repealed.

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