Introduction
The tension between gender equality and freedom of expression has become a critical area of debate in democratic societies, particularly within online environments where hate speech, including misogynistic content, often proliferates unchecked. Barker and Jurasz (2020, p. 56) argue that this juxtaposition creates a hierarchy of democratic values, where the protection of gender equality and the non-discrimination of women are deemed inferior to freedom of expression, even when such expression manifests as misogynistic discourse. This essay critically evaluates their claim, focusing on the legal and social dimensions of freedom of expression and hate speech in digital spaces. It explores the legal frameworks governing online speech, the harms caused by misogynistic hate speech, and the challenges of balancing these competing democratic values. Ultimately, this analysis will suggest that while freedom of expression remains a cornerstone of democracy, its prioritisation over gender equality in online contexts risks entrenching systemic harms, necessitating a more nuanced approach to regulation.
Freedom of Expression as a Democratic Cornerstone
Freedom of expression, enshrined in Article 10 of the European Convention on Human Rights (ECHR), is a fundamental democratic value that underpins open discourse and the exchange of ideas (Council of Europe, 1950). In the UK, this principle is further supported by the Human Rights Act 1998, which integrates ECHR provisions into domestic law. Online platforms, as modern public squares, amplify the reach of this right, enabling individuals to express views—however controversial—across global audiences. The European Court of Human Rights (ECtHR) has consistently upheld the importance of protecting even offensive or provocative speech, provided it does not incite violence or hatred (Handyside v United Kingdom, 1976). This legal stance reflects the belief that robust debate, even when uncomfortable, is essential for democratic progress.
However, the prioritisation of free speech can create challenges when it conflicts with other rights, such as the right to equality and non-discrimination under Article 14 of the ECHR. Barker and Jurasz (2020) contend that the legal and societal inclination to prioritise freedom of expression often marginalises efforts to address gender-based harms. In online environments, where anonymity and lack of accountability frequently embolden harmful speech, this hierarchy becomes particularly evident. For instance, platforms like Twitter (now X) have faced criticism for inconsistently moderating misogynistic content while citing free speech principles to justify inaction (Amnesty International, 2018). This raises the question of whether the sanctity of free expression is being used to shield harmful behaviour rather than to foster genuine democratic dialogue.
The Harms of Misogynistic Hate Speech Online
Hate speech, particularly misogynistic content, poses significant risks to gender equality in digital spaces. Online abuse targeting women often takes the form of harassment, threats, and derogatory language intended to silence or intimidate. Research by the UN Women organisation highlights that women are disproportionately targeted by online violence, with severe consequences for their mental health, professional opportunities, and willingness to participate in public discourse (UN Women, 2021). Such harms are compounded by the intersectionality of gender with race, sexuality, or disability, which can intensify the impact of online abuse.
From a legal perspective, the UK has criminalised certain forms of hate speech under statutes like the Public Order Act 1986 and the Communications Act 2003. Section 127 of the latter, for instance, prohibits sending messages that are “grossly offensive” or of a “menacing character” via electronic means. However, enforcement remains inconsistent, particularly regarding gender-based hate speech, as it is not a protected characteristic under the 1986 Act in the same explicit manner as race or religion (Law Commission, 2020). This legal gap often leaves misogynistic online abuse unchecked, reinforcing Barker and Jurasz’s (2020) argument that gender equality is deprioritised. Indeed, the harm principle, as articulated by Mill (1859), suggests that speech causing significant harm should be limited, yet the application of this principle to online misogyny remains underdeveloped in both policy and practice.
Balancing Competing Values: Legal and Practical Challenges
Balancing freedom of expression with the protection of gender equality presents both legal and practical challenges, especially in online environments. Legally, the ECtHR has emphasised proportionality when restricting speech, requiring a clear link between the expression and imminent harm (Féret v Belgium, 2009). While this framework aims to prevent overreach, it can undermine efforts to address misogynistic hate speech, which often operates through cumulative, rather than immediate, harm. For example, persistent online harassment may not meet the threshold of “imminent danger” but can still devastate its targets, effectively silencing women’s voices and perpetuating inequality (Citron, 2014).
Practically, the regulation of online speech involves navigating the policies of private platforms as well as state laws. Social media companies often adopt community standards that prohibit hate speech, yet their enforcement is inconsistent and lacks transparency (Gillespie, 2018). Moreover, over-censorship risks creating a “chilling effect” on free speech, where users self-censor out of fear of repercussions. The UK’s Online Safety Act 2023 attempts to address these issues by imposing duties on platforms to mitigate harmful content, including gendered abuse. However, critics argue that its vague definitions and reliance on platform discretion could either fail to protect women or unduly restrict expression (House of Commons Library, 2023). This tension underscores the difficulty of recalibrating the hierarchy of values without sacrificing core democratic principles.
Reassessing the Hierarchy of Democratic Values
Barker and Jurasz (2020) posit that the current prioritisation of freedom of expression over gender equality reflects a systemic undervaluing of women’s rights in democratic discourse. While freedom of expression is undeniably vital, its unchecked exercise in online spaces often perpetuates harm rather than progress. Arguably, the digital age necessitates a rethinking of how competing rights are balanced, particularly as online platforms amplify the scale and speed of harmful content. A more equitable approach might involve recognising misogynistic hate speech as a distinct category under UK hate crime laws, thereby ensuring that gender-based harms are not sidelined.
Furthermore, education and digital literacy initiatives could complement legal reforms by fostering cultural shifts in how online spaces are used. Encouraging critical engagement with content and promoting respect for diversity might reduce the prevalence of harmful speech without resorting to heavy-handed censorship. Such measures, while not immediate solutions, could address the root causes of online misogyny, challenging the hierarchy that Barker and Jurasz (2020) critique.
Conclusion
In conclusion, the juxtaposition of gender equality and freedom of expression in online environments reveals a complex hierarchy of democratic values, where the latter often takes precedence over the former, as Barker and Jurasz (2020) argue. This essay has demonstrated that while freedom of expression is a cornerstone of democracy, its prioritisation can perpetuate significant harms through misogynistic hate speech, particularly in digital spaces where accountability is limited. Legal frameworks, such as those in the UK, struggle to balance these competing rights due to inconsistent enforcement and definitional challenges. The harms to women, both individual and systemic, highlight the need to reassess this hierarchy, potentially through targeted legal reforms and societal initiatives. Ultimately, achieving a more equitable balance requires recognising that protecting gender equality is not a secondary concern but a fundamental democratic imperative. The implications of this debate extend beyond legal theory, shaping the inclusivity and safety of online spaces for future generations.
References
- Amnesty International. (2018) Toxic Twitter: A Toxic Place for Women. Amnesty International.
- Barker, K. and Jurasz, O. (2020) Online Misogyny as Hate Crime: A Challenge for Legal Regulation? Routledge.
- Citron, D. K. (2014) Hate Crimes in Cyberspace. Harvard University Press.
- Council of Europe. (1950) European Convention on Human Rights. Council of Europe.
- Gillespie, T. (2018) Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media. Yale University Press.
- House of Commons Library. (2023) Online Safety Bill: Progress of the Bill. UK Parliament.
- Law Commission. (2020) Hate Crime Laws: Final Report. Law Commission of England and Wales.
- Mill, J. S. (1859) On Liberty. John W. Parker and Son.
- UN Women. (2021) Violence Against Women in the Online Space. UN Women.
