Academic year 2013-14 was an interesting one.
I’d started work at UEA’s students’ union – and in the slipstream of national work on harassment and sexual misconduct and “lad culture”, I’d attracted considerable opprobrium from some working in the campus venue because I’d resolved that we wouldn’t be playing Pharrell Williams and Robin Thicke’s “Blurred Lines”.
This apparent PC-gone-mad crackdown on our DJs’ “freedom of expression” (described as “whining” by Spiked!) was difficult to stomach in an SU that had historically often opposed NUS’ “No Platform” policies – but having seen with my own eyes what happened in the LCR when it came on, I thought I was justified regardless of whether there had been a referendum on the issue.
I’ve often mused on whether these days, someone would be able to use the Higher Education (Freedom of Speech) Act to block that sort of ban – or at least get a complaint into the Office for Students (OfS) over it.
Just before Easter that year I took a few days off to get away to Denmark – where I watched Austria win the Eurovision Song Contest in a former shipyard in Copenhagen. Little did I know that the fallout from that win would end up being central to a brewing controversy over freedom of speech regulation in England some 11 years later.
The winner that year was Conchita Wurst (the drag persona of Thomas Neuwirth) with the song “Rise Like a Phoenix” – a result that was controversial in some Eastern European countries given her “bearded” gender-nonconforming appearance.
A few days after the contest, two members of the Armenian Jury gave a press conference, explaining that they had given Conchita the fewest points because “of their internal revulsion” at her appearance. They specifically stated:
…like the mental patient causes repulsion, so does this phenomena.
Participants at the press conference called out the judges on their discriminatory and offensive remarks – but the following day, Armenian newspaper Iravunk piled on by publishing an article titled:
They serve the interests of international homosexual lobbying: The blacklist of enemies of state and nation.
The article included a list of 60 activists and supporters of LGBTI rights, encouraging readers, employers, and public bodies to discriminate against them.
Neighbors say we’re trouble
Having first attempted to resolve the issue informally – only to have the paper double down – a group of them tried the Armenian courts, which dismissed the activists’ claims, ruling that the articles did not aim to insult them but simply contained:
….an element of exaggeration and provocation, in the exercise of the journalist’s right to free speech.
And so they filed their case with the European Court of Human Rights – which handed down its judgement in January of this year.
Armenia’s courts had viewed the newspaper’s tirade as lawful – robust, if unpleasant, political commentary – and so protected by Article 10(1):
A10(1): Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
But Strasbourg said that when deciding whether expression is “within the law”, you can’t just stop at a domestic statute book’s explicit offences.
You also have to factor in the built-in brakes of Article 10(2) – which insist that speech rights are limited by respect for the rights and freedoms of others and by what is necessary in a democratic society:
A10(2): The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
In other words, once you’ve worked out if there’s an explicit law that restricts some speech, 10(2) then causes you to think about whether speech tramples on someone’s Article 8 dignity, or discriminates under Article 14, or engages any other of the rights in the Convention.
If otherwise legal speech stirs up hostility or encourages discrimination, depending on the context, it slides towards a zone where Article 10 protection shrinks – or even disappears under Article 17’s “abuse of rights” clause.
The Court ruled in favour of the activists, finding that Armenia had violated their rights. It held that the newspaper articles went beyond legitimate political discourse and constituted hate speech that could incite violence and discrimination.
Acknowledging the importance of press freedom, Strasbourg emphasised that the articles’ call for readers, employers, and public bodies to discriminate against named individuals crossed the line from protected speech into harm. And the Armenian courts’ failure to provide any protection against this targeting represented a breach of the state’s positive obligations under the Convention.
The competing rights – in the Armenia case of speech on the one hand, and privacy and equality on the other – do still have to be seen through the lens of necessity and proportionality. But it’s the two stage process taken together that sets out what is “within the law”.
Walking over glass
This all matters because when the Higher Education (Freedom of Speech) Bill was being debated in the Lords, this question of the meaning of “freedom of speech within the law” came up. Lord Hope of Craighead wanted to know what it meant:
I should explain that the way the Bill expresses the idea of freedom of speech is to encompass it as freedom of speech within the law. It seemed to me that the words “within the law” beg the question of what exactly that expression means.
He initially proposed an amendment defining freedom of speech directly by reference to Article 10(1), but Lord Moylan worried that omitting Article 10(2) would create confusion.
The government eventually proposed a compromise, defining freedom of speech as referring to Article 10(1) “as it has effect for the purposes of the Human Rights Act 1998.”
Lord Hope ultimately accepted that formulation, noting that the phrase “as it has effect” implicitly imports the whole balancing test from the Human Rights Act – including Article 10(2)’s limitations.
But it’s not immediately clear that the Office for Students (OfS) noticed.
Go about your business
In its consultation on Regulatory advice 24: Guidance related to freedom of speech, restrictions on freedom of speech are treated as binary (lawful/unlawful) rather than explaining that Article 10 requires a nuanced balancing exercise.
It listed specific legal restrictions (harassment, discrimination, anti-terrorism laws) but doesn’t frame these within the broader Article 10(2) framework that Parliament apparently intended to incorporate.
The Armenia case shows why this matters – speech that doesn’t violate domestic criminal law can still lose Article 10 protection if it unnecessarily tramples on others’ rights.
In their response to the consultation, Naomi Waltham-Smith, Julius Grower, and James Murray argued that advice could mislead providers and SUs because insufficient consideration was given – in either the guidance or the worked examples – to the balancing acts that would need to be undertaken in difficult cases.
They also specifically criticised OfS for failing to explain how Article 10(2) operates, noting that:
…while Article 10(2) is quoted in the guidance, its operation is neither explained nor applied in either the guidance or the examples.
That omission, they warned, risked universities thinking they only needed to check whether speech violated explicit legal provisions, rather than conducting the fuller proportionality assessment that both the European Convention and Parliament’s incorporation of it into the Higher Education (Freedom of Speech) Act required.
So they proposed a four step test:
Step 1: Is the speech completely beyond the pale? (Article 17 ECHR)
Does the speech abuse human rights to destroy human rights themselves – like promoting terrorism or calling for genocide? Article 17 of the ECHR says such extreme speech gets no protection at all. If yes, the university’s duty under the HEFoSA doesn’t apply. If no, move to step 2.
Step 2: Does the speech break UK law?
Is what they’re saying illegal under any UK statute or common law (like hate speech, harassment, inciting violence, or defamation)? If yes, the university’s duty doesn’t apply. If no, move to step 3.
Step 3: Can the university restrict this speech? (Article 10(2) ECHR)
Article 10(2) of the ECHR allows some limits on free speech for things like national security, public safety, or protecting others’ reputation. BUT – in academic contexts this is extremely hard to justify because academic freedom is so important. If the university can show a restriction is necessary under Article 10(2), their duty doesn’t apply or is satisfied. If not, move to step 4.
In this step, there’s a proportionality test:
- Is the objective important enough? – The reason for restricting speech must be sufficiently weighty to justify limiting a fundamental right.
- Is the restriction rationally connected? – The measure must actually help achieve the objective, not just be vaguely related to it.
- Is this the least restrictive option? – Could you achieve the same goal with less impact on free speech? If yes, you must use the less intrusive approach.
- Does the benefit outweigh the harm? – Even if the first three tests are met, you must still balance the severity of restricting speech against how much the restriction actually helps achieve your objective. The restriction fails if the damage to free expression outweighs the benefit gained.
Step 4: Has the university taken “reasonably practicable steps”?
Has the university done what’s realistically possible to enable the speech (like providing security, booking suitable venues, managing protests)? If yes, they’ve discharged their duty. If no, they’ve breached it.
Academics for Academic Freedom (AFAF) disagreed with that approach. They argued that the European Convention on Human Rights sets the minimum level of free speech protection – but that UK law can (and does) give you more protection than the minimum.
They argued that Article 10(2) lists when speech can be limited (like for public safety), but it doesn’t require limits. And given the legislation says universities must protect speech unless it’s actually illegal or violates someone’s human rights, in their view Article 10(2) doesn’t add any new reasons to restrict speech beyond what’s already in UK law.
For them, the guidance extensively discussed protecting people from discrimination and harassment, didn’t force universities to allow “vicious, sustained and personal attacks”, and that universities could still have rules about behaviour – as long as they applied equally regardless of viewpoint.
For them, all the draft did was ensure that universities can’t use vague concerns about “harm” to shut down legitimate debate and academic discussion.
Act as if you’re free
In the final version of the guidance, OfS adopts a three-stage process that then runs underneath its examples:
Step 1 asks simply whether speech is “within the law” – defined as speech not prohibited by primary legislation, legal precedent, or secondary legislation. Crucially, university regulations and contracts don’t count as “law” here. If not, don’t allow it. If it is, move to Step 2.
Step 2 considers whether there are “reasonably practicable steps” to enable the speech. Universities should consider factors like legal requirements (including any formal duties), maintaining essential functions, and physical safety – but explicitly cannot consider the viewpoint expressed, whether it’s controversial, or reputational impact. If steps can be taken, take them. If not, move to Step 3.
Step 3 – only reached if no reasonably practicable steps exist – then asks whether any restrictions are “prescribed by law” and proportionate under the European Convention. This involves checking if there’s a specific legal rule authorising the restriction, and runs through that same four-part proportionality test weighing the importance of the objective against the severity of limiting the right.
In other words, OfS has gone with AFAF’s interpretation – which is a key architectural difference.
OfS’ process treats Article 10(2) considerations as a final backstop – something you only reach after exhausting practical options. But the Armenia case suggests these considerations should infuse the entire analysis from the start.
When Strasbourg said speech must be “within the law,” it meant not just checking against explicit prohibitions, but understanding that Article 10 protection can shrink or disappear when speech unnecessarily tramples on others’ dignity or encourages discrimination.
That matters because universities following the OfS guidance might think they’re obliged to host speakers who, while not technically breaking actual laws, are using their platform to create hit lists of activists or stir up discrimination – “permissive environments”.
The guidance’s linear process could lead institutions to conclude they must exhaust all “reasonably practicable steps” before even considering whether the speech itself has already lost its Article 10 protection by targeting individuals for harassment.
That’s not just a theoretical concern – it’s precisely what happened in Armenia, where domestic courts protected speech that Strasbourg found had crossed the line from legitimate discourse into unprotected speech.
And for Waltham-Smith, Grower, and Murray, this leaves universities in an impossible position.
No one could have witnessed
They argue that the final OfS guidance seems to be confused about Article 17 (the “abuse of rights” clause). While it mentions Holocaust denial as an example, it then suggests universities still have duties to take “reasonably practicable steps” even for Article 17 speech.
For Waltham-Smith, Grower, and Murray, this makes no sense – Parliament explicitly defined “freedom of speech” by reference to the Convention standard, which includes Article 17. You can’t cherry-pick which bits of the Convention apply.
They note that OfS seems to have ignored the idea raised during the Lords debate that incorporating Article 10(2) was “axiomatically required” by the statutory definition. They suggest OfS has misunderstood that Article 10(2) isn’t just about defining what’s “within the law” – it’s baked into the very definition of “freedom of speech” that Parliament adopted.
Their key criticism is that the guidance requires universities to exhaust all “reasonably practicable steps” before even considering proportionality and competing rights like Article 8 (privacy/dignity) or property rights. But for them, that gets the analysis backwards – you need to consider whether speech tramples on others’ Article 8 rights from the start, not as an afterthought.
Crucially, in Minasyan v Armenia, Strasbourg struck down Armenia’s approach precisely because it over-privileged Article 10 without properly balancing Article 8 rights. OfS’ guidance arguably puts universities in exactly the same position – following an analytical framework that’s already been ruled non-Convention compliant.
Put another way, universities following OfS guidance could find themselves breaching the Human Rights Act 1998 by using an approach that Strasbourg has explicitly rejected – OfS’ linear, checkbox approach misses the fundamental point that human rights require holistic balancing from the outset, not sequential consideration.
And that takes us back where the see-saw all started – holocaust denial.
Cause you wouldn’t know me today
Back in 2021 on the day that the then universities minister Michelle Donelan appeared on PM, the exchange with presenter Evan Davies went as follows:
Michelle: What this Bill is designed to do is ensure that we protect and we promote free speech that is lawful so any free speech that is lawful…
Evan: It is lawful, Holocaust denial is in this country lawful isn’t it? So Holocaust denial is okay, you would defend a holocaust denier being invited to campus because that is part of the free speech argument?
Michelle: Obviously it would depend on exactly what they were saying, whether they were straying into racism, whether they were straying into hate crimes, but a lot of these things that we would be standing up for would be hugely offensive and would be hugely hurtful…
Less than 24 hours later, both her boss Gavin Williamson and PM Boris Johnson had flat out contradicted her – Donelan herself issued a panicky 10.15pm tweet thread making clear her view that antisemitism is abhorrent “and will not be tolerated at our universities”, and met with Charlotte Nicholls MP to:
…confirm that she had misspoken and it was not the intention of the government that the new bill be used to defend Holocaust denial.
Presumably to assuage critics, the final guidance simply declares that OfS “will not protect Holocaust denial” – full stop. But it doesn’t really say why – all the consultation response does is try to justify this by saying it’s because Holocaust denial would:
…likely amount to incitement to racial hatred and harassment.
That suggests a fundamental confusion about why Holocaust denial isn’t protected. In European human rights jurisprudence, Holocaust denial is the paradigmatic example of Article 17 speech – speech that abuses rights to destroy rights and therefore gets no protection whatsoever. You don’t need to prove it amounts to incitement or harassment – it’s simply outside the scope of protected speech from the start.
By trying to shoehorn Holocaust denial into UK criminal law categories (incitement) or civil wrongs (harassment), OfS decides that it’s not properly engaging with the Convention framework that Parliament explicitly incorporated. It’s treating it as just another form of potentially illegal speech – rather than recognising it as categorically unprotected under Article 17.
And that opens the door to all sorts of chaos.
- We might imagine a speaker or campus group publishing lists of “woke professors undermining British values” or “Marxist students infiltrating the university” with names, photos, and course details. While not explicitly illegal, that would mirror the Armenian newspaper’s tactics and could encourage targeting and harassment.
- A speaker systematically and deliberately misgenders trans students or staff, encouraging audiences to do the same. While potentially not reaching the threshold for harassment (which requires a “course of conduct”), it could violate dignity rights under Article 8.
- A rugby club hosting a speaker to give a talk on “team bonding traditions” that promotes hazing rituals targeting women – like “sharking”, “seal clubbing”, or scoring systems for sexual conquests. While not directly instructing assault, it creates a culture where such behaviour is normalised and encouraged.
- Student societies booking speakers who promote “player culture” – teaching tactics like getting women drunk to “lower resistance,” how to “neg” women to undermine confidence, or running “bootcamps” on manipulating “7s into thinking they’re 4s.” Carefully avoiding anything that could be construed as inciting assault while creating predatory environments.
- SU comedy events featuring performers whose acts revolve around rape jokes, domestic violence “humor,” and audience participation segments where female students are singled out for sexual humiliation. Defended as “edgy comedy” but designed to normalize violence against women.
- Student societies hosting speakers who argue that rape statistics are “feminist propaganda,” that most accusations are false, and encouraging male students to “protect themselves” by recording all sexual encounters or avoiding being alone with women. Creating an atmosphere where victims are pre-emptively discredited.
- Academic presentations arguing certain racial groups are genetically less intelligent, complete with “scientific” graphs and data. While framed as academic discourse and not explicitly inciting violence, such content could encourage discrimination and lose Article 10 protection.
- A speaker singling out specific LGBTQ+ students by name as “abominations” who will “burn in hell,” while stopping just short of calling for action against them. The speech might not meet the threshold for incitement but could constitute degrading treatment.
- Presentations warning that specific ethnic groups are “replacing” the native population, using university demographic data to identify departments or residences with high numbers of international students. Technically discussing statistics but designed to stir hostility.
- A staff member argues that disabled students are a “drain on university resources” and promoting selective admission policies based on genetic screening. Not explicitly calling for discrimination but creating an environment where it’s encouraged.
- A society running workshops teaching young men that women are “inherently inferior,” should be “controlled,” and are “property” once in relationships might use pseudo-evolutionary psychology to argue women “want to be dominated” and teach tactics for emotional manipulation. While carefully avoiding explicit incitement to violence, the content systematically degrades women’s dignity.
- A student club encouraging male students to publicly rate and shame female students based on their sexual history, creating websites or social media campaigns to track and expose women’s private lives. Not quite reaching the legal threshold for harassment but creating a fairly hostile environment.
- Alumni speakers at formal dinners celebrating historical drinking society chants about “consensual non-consent” or sharing “conquest walls” where women’s photos were displayed as trophies. Framed as “preserving tradition” but perpetuating degrading treatment.
- Presentations arguing women in higher education are “destroying society,” that female students should be “preparing for motherhood not careers,” and encouraging male students to “put women in their place.” Framed as cultural commentary, but intimidating women from participating in university life.
Under the OfS framework, universities might think they need to find “reasonably practicable steps” to allow all of that – perhaps with security, protests managed at a distance, etc. But following the Armenia logic, all of the above could already lack Article 10 protection because it:
- Systematically undermines other HRA rights
- Encourages discrimination based on a protected characteristic
- Creates an environment hostile to equal participation in education
- Goes beyond legitimate discourse into targeted degradation
The real danger is that content is specifically designed to stay just within legal boundaries while maximising harm – exactly the kind of speech that requires the full Article 10 balancing act from the start, not as an afterthought.
Which is why, I suspect, that while OfS consistently says that it won’t protect holocaust denial, it can never quite bring itself to say that it would be OK to ban holocaust deniers.
Universities now face an impossible choice – follow OfS guidance and risk breaching the Human Rights Act, or properly apply Article 10 and risk regulatory action.
What started as an attempt to protect academic freedom has morphed into a framework that could protect the worst forms of “permissive environments” to promote or condone stuff they’ve been making progress on tackling for years.
The solution isn’t complex – OfS simply needs to align its guidance with the Convention framework that Parliament explicitly incorporated. Until then, every controversial speaker booking, every protest, every difficult decision will be made in the shadow of guidance that looks like it misunderstands what “freedom of speech within the law” actually means.
And it’s students – particularly those with protected characteristics who that activity so often targets – who will pay the price.
