The Natural Limits of Freedom of Expression

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The Natural Limits of Freedom of Expression

A situation where we have the freedom to do whatever we please without consequences exists only in fantasy, not reality. In fantasy, nobody gets hurt, and everyone acts as we wish. Reality, however, is far messier—people behave as they please, often at the expense of others. For this reason, the phrase ‘Freedom of Expression’ has always made me uneasy. The word ‘freedom’ is frequently misinterpreted as an unfettered license to act without consequences, a misunderstanding that poses significant societal challenges.

It is easy to conclude the operational part of the word is ‘free’. Merriam-Webster (for example) defined its various shades to ultimately impart a sense of ‘free’ being a state of being unburdened, without responsibility and without any constraints or limitations imposed. ‘dom’ is simply an attachment to the operative part to make it into an entitlement.

When that sense of entitlement is transformed into a legal right, it immediately draws limitations upon it.

First, there is no such thing as unlimited, infinite or absolute discretion bestowed upon anyone, natural, artificial or governmental, in the law founded in a rule of law environment. Second, when the entitlement transforms into a legal right it has to be for all, not just for one. That means, the limit of my right ends where yours begins. The point being, there is a limit. There is always a limit.

So what are the limits of Freedom of Expression?

First, we cannot use it to harm someone’s reputation and social standing unfairly. We cannot tell lies about them. If we do, they can sue us for defamation and lodge a complaint for criminal defamation.

The law, however, allows us to say nasty things about a person if we can firstly, prove it. This is the defence of justification. If we accuse someone of being a pedophile and can prove that, that is no longer defamatory but simply a fact.

But the law also recognises there are times when we must be allowed to say something defamatory about someone for the greater good. These are privileged occasions. There are two kinds of privileges. Absolute and Qualified.

Absolute privilege is when no legal action can be taken against us for making defamatory remarks against another. An example is when we lodge a police report against someone. We will necessarily be accusing someone of doing something wrongful. We must be able to make that allegation without legal repercussions. If not, the police cannot investigate it. For completeness, if we repeat the contents of the police report to the media, we lose the cover of privilege.

Qualified privilege is when a person who is under a duty, whether legal, social, or moral, writes something defamatory and the people who read it have an interest in or a duty to report what was written. An example of qualified privilege is where someone makes a complaint to a company human resource department about someone else.

The law also recognises times when harsh remarks are called for so long as our comments are fair, based on facts and made without malice. This is the defence of fair comment. The policy behind this is that there must room for robust public discourse.

Second, we cannot use our freedom of expression to be a nuisance to others. For example, we cannot blast our music loudly until it disturbs the surrounding neighbourhood. We cannot play a trumpet in our condominium in the early morning weekdays. If we do, we intrude into the space and peace of others.

Third, we cannot use our freedom of speech to incite violence against others, cause a breach of the peace or community disturbance. The law will not sanction actions that cause or contribute to societal instability and chaos. The Penal Code (‘PC’) contains a variety of offences that address that.

A few examples. Section 130G PC punishes those that knowingly incite others to commit terrorist acts, or join or fundraise for terrorist groups. Section 298 PC criminalises expressions that deliberately intends to wound the religious feelings of a person. Section 298A PC (for Wilayah Persekutuan only) criminalises any expression that causes disharmony, disunity, or hatred on the grounds of religion. Section 505(b) PC punishes anyone who broadcasts statements with the intent to cause fear or alarm to the public to induce them to commit an offence against the government or public tranquillity.

Fourth, we cannot use our freedom of expression to take advantage of another, particularly children. Inciting a child to do an act of gross indecency is an offence under section 377E PC. We cannot use it to cheat or defraud others. Section 415 PC outlaws cheating which is dishonestly inducing a person to do or not do something. Sections 421 to 424 PC create offences relating to fraudulent deeds or transfer of property. We can also take out a civil case for recovery of the property or the harm suffered arising from fraud.

Fifth, under Article 10(2)(a) of the Malaysian Federal Constitution, our freedom of expression can be curtailed in the interest of the nation’s security, friendly relations with other countries, public order and parliamentary privilege. Our freedom of expression is always subject to it not disrupting or detracting from the greater good.

What these laws create is an obligation on us to use our right of expression responsibly, genuinely and honestly. We are responsible for and will be held accountable for what we express. That right should not be used to cause reputational or property harm to another or societal disturbance. That’s the extent of our ‘freedom of speech’.

I personally prefer describing it as a right rather than a freedom. But that does not solve the problem of misunderstanding it either. I am aware there is a strong propensity for the word ‘right’ to be treated absolutely too.

When the word ‘right’ is used, the general public conveniently forgets its responsibilities towards the continued existence of that right. The difference may appear pedantic, trivial or illusory, but each word results in a different inflection. At least ‘right’ feels narrower and restrictive compared to the vastness of ‘freedom’.

I remember once someone remarked that we have freedom of expression, just not after we exercise it. To some extent that is true. We cannot say whatever we like. We cannot say things that harm others reputationally, disrupt communities and breach the peace. We can and should be punished for abusing, weaponising and misusing our freedom of speech.

In the end, freedom of expression is not an unrestrained license but a responsibility we must exercise with care and respect for others. The law recognizes this balance, imposing limits to prevent harm, protect reputations, and maintain societal order.

While the term ‘freedom’ may evoke a sense of boundless liberty, the reality is far more nuanced: our words and actions carry weight and consequences. Perhaps reframing ‘freedom of expression’ as a ‘right to responsible expression’ better reflects this reality. Ultimately, the survival of this right depends on our collective commitment to wield it wisely, ensuring it remains a tool for discourse and progress, not a weapon of harm, division or deception.

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