Criticising political opinions could be treated as hate speech under EU rules for broadcasters carried over into British law after Brexit, the Government fears.
Plans to change the law have emerged in a document marking the second anniversary of Britain formally leaving the EU.
It lays out the post-Brexit reforms planned by ministers, including measures for freeports, financial services legislation, farming subsidies and other sectors once regulated by Brussels.
The Benefits of Brexit policy document also states that laws requiring broadcasters to respect the Charter of EU Fundamental Rights will be rewritten.
It states: “It is the Government’s intention to replace the EU definition in the Communications Act 2003 with a UK specific measure over the coming months due to our concerns about the chilling effect it has on free speech.”
Fear of prosecutions over political opinions
The measure is carried over from the EU’s Audiovisual and Media Services Directive, which bans broadcasters and streaming services from inciting “violence or hatred” against people for a string of reasons.
These include sex, race, colour, ethnic and genetic features, language, religion or belief, disability, age or sexual orientation and “political or any other opinion”.
There are fears in government that this is too broad and that Ofcom, the media regulator, could interpret the rules in a way that could lead to hate speech prosecutions over criticism of political opinion.
There are also concerns it could lead to programme makers self-censoring to prevent possible prosecution. In 2020, episodes of comedy shows Little Britain and Fawlty Towers were removed from streaming services over the use of blackface and racial slurs.
Concerns over leftover EU legislation
Many EU laws, including the Audio Visual and Media Services Directive, were transferred wholesale into British law before Brexit took legal effect.
A taskforce – led by Lord Frost, the former Brexit negotiator – raised concerns over allowing the leftover EU legislation to remain in British law at a meeting with officials from the Department of Culture, Media and Sport in January 2020.
It said transposing EU rules into British legislation could create a “myriad” of problems” in the future. However, with the Brexit transition period and intense trade negotiations with Brussels looming, the fears were put on the backburner.
An official analysis was ordered into the issue, but later shelved after the outbreak of the coronavirus pandemic.
The broadcasting law was “a piece of legislation which we didn’t necessarily agree with at the time when we were in the European Union”, a source said: “In some quarters of the Government, there are very strong views on this.”
