Commentary on the Code of Practice for Freedom of Speech and Academic Freedom

This commentary provides additional context to the Freedom of Speech and Academic Freedom Code of Practice. This commentary is to be read in conjunction with the Code.

Return to the Code.

Section of code: 2.2

The duties and responsibilities prescribed by law that mean free speech is not an absolute right.

People in the UK enjoy significant human rights protections to hold and express their opinions freely. These values and protections are also a vital part of higher education; encouraging and holding open, challenging debates, which may question conventional wisdom, helps expand learning and knowledge, build tolerance and address prejudice and discrimination.

The Human Rights Act 1998 enshrines the European Convention on Human Rights (ECHR) into UK law. Article 10 pertains to the right to freedom of expression. Article 10(1) defines freedom of speech:

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.

There is a presumption in favour of free speech and academic freedom, any potential interference with the right to freedom of speech/expression and academic freedoms within the law must be made on a lawful basis.

This duty in the ECHR is a higher demand than the ‘due regard’ required by the Public Sector Equality Duty (PSED) in the Equality Act 2010.

Freedom of expression in higher education should be upheld, even if it may shock, disturb or offend others, it is a qualified right in the law and this means a wide range of steps should be taken in practice and at every appropriate opportunity to secure free speech.

Article 10(2) of the ECHR describes the duties and responsibilities that place limitations on freedom of expression:

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.

Speech can therefore be limited due to threats or risks to:

interests of national security;
Prevent considerations;
public safety on campus;
the need to prevent crime or disorder on campus
for the protection rights of others, including preventing harassment and the incitement of hatred against individuals or groups of individuals;
or for preventing the disclosure of information received in confidence.

Any interference in speech should only be considered if there are no steps or actions that might mitigate the risks or threats set out above, and if the interference is proportionate.

Section of code: 2.4

Explanation of Academic Freedom

Academic Freedom is essential to Higher Education and fundamental to the pursuit of knowledge. It relates to the intellectual independence of academic staff to question and test received wisdoms including the freedom to undertake research activities, challenge and engage with different perspectives and express their views in the production of knowledge.

Sharing ideas freely is crucial for knowledge production, learning and helping students think critically. HE institutions must protect the freedom of expression of academics and staff. Discussion and exchanges of views on difficult and controversial issues should be secured. Where there are or may be different firmly views academic freedom ensures that expressing them does not mean one view or set of views can prevent others from also expressing a contrary but equally lawful view.

Academic freedom requires a very high level of protection under the law. The European Court of Human Rights, in the majority judgement in Erdogan v Turkey, has set out that academic freedom should receive the ‘utmost protection’ under article 10 of the ECHR and “is not restricted to academic or scientific research, but also extends to the academics’ freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence”.

Section of code: 2.5

How does academic freedom provide additional employment protection

Section 2(8)I of the Higher Education and Research Act 2017 states that the ‘institutional autonomy of English higher education providers’ means ‘the freedom within the law of academic staff at English higher education providers (i) to question and test received wisdom, and (ii) to put forward new ideas and controversial or unpopular opinions, without placing themselves in jeopardy of losing their jobs or privileges they may have at the providers.’

This protects academic staff from being punished for the content of their research and teaching and/or the opinions they put forward providing that those opinions are lawful e.g. do not incite people to commit acts of terrorism.

Academic freedom also includes the freedom to choose topics of research, sources of funding and modes of dissemination without restrictions, beyond those stipulated in law.

The OU ensures that internal policies do not inhibit academic freedom. This includes ensuring that any decisions related to appointment, employment and promotion, are not influenced by any decisions to exercise academic freedom or free speech.

Currently, an academic, who believes they have lost their job, privileges or been refused promotion because of a controversial or unpopular idea they have advanced, can bring a claim in the courts or via the forthcoming Office for Students complaints scheme.

The nature and context of research students’ work subject to academic freedom

Academic freedoms are predominantly linked to academic staff roles within higher education. Professional and support staff and students generally do not have and are not protected by academic freedom.

However, there may be times when other individuals, particularly for instance, research students, contribute as members of an academic community and are involved in academic activity such as research, publication, debate and teaching.

In these instances, such individuals will be protected under academic freedom. In undertaking these activities, the full protection and definition of academic freedom applies (from Erdogan, as above): “freedom to express freely their views and opinions, even if controversial or unpopular, in the areas of their research, professional expertise and competence”.

Mini case study one

Section of code: 3.1

Case study on Values in Action framework intersecting with free speech and academic freedom

Case study one

Section of code: 3.3

Example of “physical or psychological harm” through the promotion of ideas

Constructive academic discourse and the production of knowledge is facilitated by a tolerant and inclusive culture where everyone can thrive and contribute.

Valuing diversity, treating others with courtesy and respecting the rights of others to hold and express views we disagree with are integral to creating such an environment.

Some speech, such as orchestrated campaigns, overly disruptive protests, or debates or demonstrations with counter-protests that might escalate into conflict, could create the risk of physical harm.

Psychological harm might arise from the lawful expression of offensive or disturbing views in areas of e.g. political, racial, religious or cultural sensitivity. It is important to be mindful that almost all academic debate and dialogue is likely to be lawful, even when it results in psychological pain or harm. Psychological harm might also arise from an accumulation of incidents, even where the incidents involve lawful speech.

It is important to be clear that even in this context, all lawful speech will be tolerated, even if it is offensive or potentially harmful or perceived as harmful.

For instance, a colleague may be angered and hurt by the particular definition of ‘sex’ or ‘gender’ used in a colleague’s research. A student might experience discomfort and be upset by a perceived neocolonial interpretation and framing of an historical event by an Associate Lecturer. In each example, the speech in question is likely to be lawful. Any interference in speech would likely be disproportionate, though it would be appropriate to consider mitigations to support the affected individuals, and potentially to consider actions in the service of improved and more constructive academic dialogue.

There is a presumption in favour of free speech and academic freedom. The first consideration when there is a risk of harm arising from speech should be the consideration of appropriate mitigations that allow speech to go ahead without interference, while minimising harm.

Case study on balancing ‘bringing authentic self to work’ and requirements re free speech and harassment. Link to points in Dandridge report.

Case study two

The need to distinguish between personal views and views which might be construed to be, or are framed as, views held the OU.

Staff need to balance the tension between the right to freedom of expression and other rights and responsibilities, i.e. if they are bound by a particular Code of Conduct, or the need to adhere to the ethical standards in Public Life.

OU staff (and students) have obligations to act in the OU’s interests and not act in a way likely to bring the OU into disrepute. Staff are also personally accountable for adhering to, and remaining up to date with, the policies and codes of conduct for each of the social platforms they choose to use.

OU staff and students are free to express their political, religious, social views in private or public provided this is explicitly done in their own name and not the name of the OU. The OU brand policy states that the brand may not be used in a way that gives a false impression, is misleading, or could cause confusion regarding the OU’s relationship with any person or entity.

Social media

Staff who contribute to social media sites must do so responsibly and treat electronic behaviour as they would treat non-electronic behaviour. They should be mindful of how they represent themselves on social media sites both personally but especially where they could be perceived as representing the University.

The University must ensure that the University’s confidentiality and reputation are maintained, and that staff do not subject others to online abuse. Employees are reminded of their obligations under the University employment policies and standards when using social media sites, to behave professionally and respectfully to colleagues, students or other University contacts and not to bring the University into disrepute.

The Social Media policy advises staff that when using social media, professionally or personally, employees:

remember that social media sites are public forums and should not assume that their entries will remain private.
familiarise themselves with, and adhere to, policies and codes of conduct for the social media platforms used and be aware that, for example, posting offensive comments on a public site could be incompatible with a social media platforms’ own policies and procedures.
do not do anything that could be considered discriminatory or bullying or harassing (this may also be enforced through the social media platforms’ own policies and procedures).
do not post or share defamatory comments, content and images (i.e. something which is untrue and causes or is likely to cause harm to a person’s reputation).
carefully consider using language which could be deemed as offensive.
do not to breach copyright laws.
do not publish, share or discuss confidential information relating to The Open University, or any individual, or organisation, on personal social media sites.

Staff can refer to the Social Media Toolkit, which has been designed to provide advice and guidance to staff about using social media, and also to the Interim Supplementary Social Media Policy guidance, which addresses participating in debate on matters about which there may be profound disagreement.

OU staff should be mindful that expressing personal views within a context where their views are affiliated with the OU may be inappropriate. Leaders should be careful, therefore, not to be seen to be taking one side of a debate, or favouring one view over another where there is a risk of this being perceived as the view of the OU. to do so risks breaching the OU’s obligations to secure free speech and academic freedom within the law. This does not prevent the lawful expression of personal views which re clearly expressed as being a personal view of a member of staff.

Mini case study on social media and free speech

Mini case study two

Section of code: 3.4

What is meant by ‘hostile and degrading’ and what is the definition of harassment?

One lawful rationale to restrict speech in appropriate circumstances is if the speech meets the legal definition of harassment.

Under the Equality Act 2010, harassment is defined as: “where person A engages in unwanted conduct related to a person B’s protected characteristic (such as a protected belief), and that conduct has the purpose or effect of violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for person B.” This test includes an objective element and is not solely based on the perception of person B.

In a higher education context, offensive language that is personalised or targeted at an individual may be harassment, as might ‘extremely offensive’ language, if it objectively creates a hostile or degrading environment for individuals, even in academic (teaching and research) spaces.

Further detail, information and sources of support can be found in the OU’s Bullying and Harassment Policy.

Section of code: 4.1

Mini case study on public criticism of the OU

Mini case study three

Section of code: 4.2

Engaging in broader public commentary.

The University as a corporate body actively engages in public debate on matters of interest to its charitable purpose of advancing education, learning and research for the public benefit.

When engaging in such debate, the University will also be mindful of the supplementary/complementary role it plays in protecting democracy, alongside the legislative responsibilities it carries as an organisation committed to equality and diversity, and in defending the freedoms defined in this Code.

Having charitable status means the University and/or its student groups can organise (or support students to organise) debates and discussions, or other activities that encourage students to gain knowledge, learn how to debate and form views on different issues. Such activities should not result in a breach of criminal law, charity law and/or other laws.

Legislative responsibilities in relation to charitable status.

The Open University is incorporated by Royal Charter (RC 000391), an exempt charity in England and Wales and a charity registered in Scotland (SC 038302).

Free speech contributes to the OU meeting its charitable objects.

Some staff also have duties as charity trustees and must act in ways that further the charitable purposes, i.e. to further students’ education for the public benefit.

Having charitable status does not stop institutions and student groups from organising (or supporting students to organise) debates and discussions, or other activities that encourage students to gain knowledge, learn how to debate and form views on different issues.

Trustees should be clear on how providing commentary furthers the purposes of the organisation and is not likely to result in a breach of:

criminal law
charity law restrictions on political activities and campaigning, or
other laws that apply to the charity and could damage its reputation or expose it to undue risk (for example, the risk of being sued for defamation or a
breach of equality law).

Section of code: 4.3

Reasonably practicable steps to protect lawful free speech.

The OU must have particular regard to the importance of freedom of speech and they must take ‘reasonably practicable’ steps to secure it within the law.

‘Reasonably practicable steps’ could include taking positive steps and/ or refraining from taking steps which would have an adverse impact on freedom of speech without compelling lawful justification.

Factors that are relevant to an assessment of whether steps are reasonably practicable may include:

a. the extent to which taking the step, or not taking it, would secure or restrict freedom of speech;
b. the practical costs (time, money, personnel, resources) of taking the step, or of not taking it; and
c. financial constraints.

In its briefing note, the OfS has indicated that it will have particular regard to the importance of freedom of speech, when considering the second and third of these factors.

The EHRC’s guidance provides a number of examples of what might constitute ‘reasonably practicable
Steps’ that institutions can take to ensure lawful speech is protected. In managing events these examples include:

challenging high-risk speakers with opposing views
having an independent chairperson to facilitate an event and make sure a range of viewpoints can be heard
filming an event to deter the use of unlawful speech
ticketing an event to avoid non-student violent protest
requesting to see any promotional materials before the event
having a policy setting out principles of respectful discourse that speakers have to follow supporting and encouraging the SU and student body to host debates
training staff on how to facilitate well-balanced debate, and
postponing the event if necessary to enable one or more of the steps above to be taken.

It is important that any potential interference in speech is only considered after mitigations that might allow the speech to go ahead are exhausted, that it is undertaken on a lawful basis and is proportionate.

Topics that are offensive or hurtful.

It is important that the OU is a space where current and contentious topics can be researched, taught and debated, and that free speech and academic freedom is protected and promoted in these contexts, alongside protection from unlawful harassment and discrimination.

There are many topics that may come up in the context of academic research, teaching or debate, or that could be discussed as part of wider staff and student life at the OU. Some of these topics will be subject of societal debate and carry different meaning and connotations for colleagues and students across the OU. Some topics may lead to debate or discussion that some people find offensive or hurtful.

Some areas of ongoing debate and discussion within the OU and wider higher education sector include:

Mental health and appropriate support, particularly among students
Higher education funding, pay and staffing levels
Protected beliefs – antizionism and gender critical feminism
Sex and gender
The boundaries of academic freedom and free speech
Global geopolitical tensions and conflicts
Sexual harassment

Preparation for events and debate can help ensure freedom of speech and academic freedom are promoted and protected, and risks of harm minimised. This includes:

Consultation with those affected or likely to be affected and other interested parties across the OU
It may be helpful to consider groups who feel particularly vulnerable to intolerant activity or who traditionally have not engaged with the institution.
Listen to individuals or groups who have raised issues or made a complaint.
Clear communication about the topic and focus of a discussion will help colleagues make informed decisions about their own participation or engagement.
If an incident/situation is reported, seek to offer support to all affected individuals, whatever stance they have on the particular issue or how they are affected by the particular event/situation. This should include clear communication about the relevant OU policies, processes and mechanism for support.

For instance, a talk on student mental health that covers the topic of suicide should be discussed with staff from relevant student services, include clear signposting on the likely content of the talk to enable decisions about attendance. There should similarly be signposting to appropriate support mechanisms. Staff should be vigilant for affected individuals during the discussion.

In framing an event, discussion or debate on a sensitive topic where speech may be considered harmful or offensive, it can be useful to reference the OU’s Values in relation to inclusive, respectful and curious dialogue. This Code itself also prioritises respectful debate, being sensitive to the views of others and the importance of academic rigour, including recognising strengths and weaknesses on both sides of a discussion.

Depending on the circumstances, this may include welcoming and providing a platform for competing or alternate views, possibly within the event, or facilitating an alternative/parallel event (or acknowledging these views if a suitable speaker isn’t available).

Debate can prioritise academic rigour by explicitly discussing evidence and facts, gaps in knowledge, and important lines of further research or enquiry. The evidence, strengths and weakness of arguments and gaps in knowledge will themselves be contested in most cases.

Almost all academic dialogue will be lawful speech, even when some might find it offensive. In its guidance on Freedom of Expression for Higher Education Providers and Students’ Unions in England and Wales, the EHRC states that: “Students’ learning experience may include exposure to course material, discussions or speaker’s views that they find offensive or unacceptable, and this is unlikely to be considered harassment under the Equality Act 2010”. In addition, institutions should also be mindful of S.197 of the most recent edition of the Prevent Guidance which states that “In most cases we would expect that…risks can be mitigated without shutting down free speech”.

Case study - how engaging with a high profile, provocative and offensive speaker might play out lawfully and inclusively in practice.

Case study three

Section of code: 4.4

Examples of promoting free speech

The OU promotes freedom of speech and academic freedom through:

engaging with staff and students and raising awareness of the updated Code of Practice on free speech (as well as any updates to other relevant policies and procedures)
providing training to help increase staff understanding of free speech protections and the Code
signposting staff and students to Report + Support and formal complaints processes
bringing the Code to staff and students’ attention at least once a year

Section of code: 4.5

Case study on how engaging with a high profile, provocative and offensive speaker might play out lawfully and inclusively in practice.

Case study three

Section of code: 5.2

Examples of the mitigations that may be required to protect free speech

See Events Policy.

Section of code: 5.3

Definition and examples of ‘exceptional circumstances’

In limited and exceptional circumstances, it may be appropriate to consider passing on security costs or denying consent for an event. These may include:

prohibitive cost of security, typically over £2,500;
health and safety risk;
or risk of unlawful activity, either by protestors or speakers.

In each instance, mitigations should be considered and exhausted before denial of consent is considered.

Universities are not town squares and the right to freedom of expression does not automatically create a right for external speakers to be invited to speak at the OU. However, speakers or topics should not be effectively ‘blacklisted’ or fully excluded from OU consideration. Decisions should be made on a case by case basis. It should also be clear that once an invitation has been issued any withdrawal of consent is likely to violate the speaker’s freedom of expression and should only be considered in very exceptional circumstances, following consideration of mitigation, and where such intervention would be lawful and proportionate.

Section of code: 5.4

Expected standards of behaviour whilst attending events

The Behaviours and Standards at Work Policy covers the behaviour that is expected of staff at social events, even if such events take place outside working hours and away from the workplace.

The University Bullying and Harassment Policy/Code also applies to work related social events.

Staff who attend work-related social events should remember that they will remain responsible for their own behaviour, even if they consume alcohol. Staff are forbidden from using any illegal drugs, including [non-medical] cannabis, at any work-related social event.

Staff should also not say or do anything at a work-related social event that they would not say elsewhere especially if it could intimidate, harass, embarrass, or upset any other person, whether as a joke or not.

Staff must also behave in any way that would not bring the University into disrepute. Any breach of the above may render the member of staff liable to disciplinary action.

Section of code: 7.1

How the OU will promote awareness of its Code

Email to students and staff (bringing it to their attention at least once a year)
Publishing the updated draft on website/intranet
Offer training to staff on working with and implementing the Code