Censoring Gary Lineker – by George Letsas and Virginia Mantouvalou

Image by 0fjd125gk87 from Pixabay

Last week was grim in British politics and the weekend was miserable for football fans. The suspension of Gary Lineker from the BBC triggered a fierce and intense debate on free speech in social media and its relationship to employment, leading also to a major crisis for the organisation. Lineker is a hugely popular sports commentator, and formerly professional footballer, who has been presenting the BBC flagship programme Match of the Day (MOTD) since the 1990s. He was suspended by the BBC after posting a tweet criticizing the UK Government’s approach to asylum seekers. A few days later, on Monday the 13th, an agreement was reached between the BBC and Lineker, and the organisation is now in the process of reviewing its social media guidelines. In this post we examine the criteria that should guide thinking on restrictions of free speech in social media in relation to work – a right that the UK Government claims to champion.

1. What happened

Last week, the Home Secretary Suella Braverman introduced in Parliament the ‘Illegal Migration Bill’. In its current form, the Bill provides that people who arrive in the UK irregularly, namely not through one of the existing migration routes, do not have a right to seek asylum. They will be detained and deported. Anyone with basic familiarity with how the asylum system works knows that most asylum seekers do not have a right to enter a country through some other migration route and apply for asylum after arrival. The Illegal Migration Bill has been received with outcry by human rights and refugee organizations, including UK civil society organizations, and with criticism by the UNHCR, the UN Refugee Agency that said that the Bill amounts to an asylum ban and is therefore incompatible with international standards to which the UK has signed up.

Against this background, and in the context of several expressions of disbelief and anger on social media, Gary Lineker, who has previously expressed political opinions, tweeted:

Lineker’s tweet was covered on the front page of the tabloid press for three days at a time when other newspapers covered the inhumanity of the actual Bill. On Friday, the 10th of March, Lineker was suspended by the BBC. It was reported that he was asked to step down while the organization was trying to reach an agreement with him on the use of his social media. Lineker was asked to apologize for his tweet but he refused. His son explained that support for refugees is an important moral principle for Lineker who ‘will always speak up for people who don’t have a voice’. Following Lineker’s suspension, a number of sports analysts and pundits announced that they would not be appearing on BBC TV and radio programmes, expressing in this way their solidarity with Lineker. As a result, there was almost no sports coverage on BBC. On Monday the 13th he reached an agreement with the BBC.

2. Work and Free Speech on Social Media

Disciplinary action in the workplace because of social media activity is far from unprecedented. For a worker to lose their job because of political opinions that they expressed on social media is generally concerning, and was the topic of the first blog post published on this blog (see further here). Such disciplinary action for activity that has nothing to do with workplace conduct or performance raises particularly serious concerns about the power that the employer can exercise upon workers in a typical employment relationship characterized by inequality of bargaining power.

While in the past people would express views orally and in a small circle of people, in the age of social media, many people engage in political and other debates online, posting instantly and spontaneously views that are permanently accessible by anyone and may be controversial. Employers can access these posts and use them as reasons that justify disciplinary action even though the views expressed have nothing to do with how well people do their job. In this way, employers can control their private activities and views. This has led scholars to characterize the power of the employer as ‘Private Government’. However, the law can set limitations to this power of the employer.

In English law, the Employment Rights Act 1996 governs the lawfulness of employees’ dismissal, providing for a test of fairness. In reality, over the years tribunals and courts have recognized a broad range of reasonable responses to an employer when assessing whether a dismissal was fair, giving in this way employers great discretion. Academic scholarship and legal practice have often explored the boundaries of the test of fairness, arguing that employees deserve stronger protection. But judges in the UK are nervous about interfering with employers’ prerogative, even when dismissals raise human rights issues. The legal basis for human rights considerations to be introduced in this context is the Human Rights Act 1998 (HRA), which incorporates Convention rights in English law. Under section 3 of the Act, courts have a duty to interpret legislation in a way that is compatible with Convention rights. This is described as indirect legal effect. Yet if Lineker is a freelancer for the BBC, he is not protected by the law of unfair dismissal that only applies to employees.

However, the BBC may be viewed as a public authority (see case law on Freedom of Information Act 2000, Sugar v BBC [2009] UKHL 9). If classified as a public authority, it has a direct obligation to comply with the Human Rights Act 1998 under section 6, which says that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’. If it is hybrid, the question will be if the disciplinary action ‘is better conceived as a public act’, as David Mead explains here. The right to freedom of expression is protected in Article 10 of the European Convention on Human Rights, incorporated in English law through the HRA. The UK Government presents itself in many contexts as a great proponent of free speech, an issue that was also covered in a blog post here.

The European Court of Human Rights has repeatedly ruled that freedom of expression ‘is one of the essential foundations of a democratic society’ and has specifically supported that political speech is protected particularly strongly. It has even said that the Convention protects speech that ‘offends, shocks or disturbs’. Some kinds of speech may be restricted if they incite hatred, as hate speech is not protected by the Convention. However, the view that Lineker expressed was in favour of humane immigration and asylum policies and in support of some of the most vulnerable populations. It was very much against policies that many describe as hateful. The view that Lineker expressed, in other words, is in principle clearly protected under the Convention. His suspension for this view would then constitute an interference with Article 10 of the ECHR.

3. Key considerations

Yet the protection of free speech is not absolute and an interference with it is not equal to a violation. Article 10 of the ECHR is a qualified right, which means that the right can be restricted if there is a legitimate aim to this restriction, and subject to a test of proportionality in accordance with the second paragraph of Article 10. In Bank Mellat of the UK Supreme Court, Lord Reed formulated the test of justification as follows:

“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(2) whether the measure is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
(4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

What are the considerations that should guide our thinking in this context? The European Court of Human Rights has examined free speech at work in several cases, including Palomo Sanchez v Spain, which involved free speech in the trade union context and we covered previously here.

In the case of Lineker’s suspension, the first two steps of the Bank Mellat test above can be said to be met. The objective of the restriction is to protect the impartiality of the BBC and the measure of suspension can be connected to the objective. It is less clear if the third step is satisfied: a less intrusive measure could have been used in this case, consisting in a review of the BBC social media Guidelines without suspending Lineker.

As for the fourth step, the key criteria should be as follows. A central consideration to direct courts and tribunals examining this kind of restriction of free speech in employment is whether the expressed view is relevant to the nature of someone’s job. As the BBC is funded through taxpayers’ money and its mission is to act in the public interest, it is committed to the principle of impartiality. This means that impartiality forms part of the nature of the job of BBC employees in the way that it need not be for journalists who work in politically partisan media outlets. Yet the meaning, scope, and stringency of the principle of impartiality are contested issues. The BBC now accepts that impartiality does not necessarily entail devoting equal time to all views on a subject. It does not require, for instance, that scientific claims denying anthropogenic climate change must be given coverage on the BBC, let alone equal coverage to climate change science. The BBC must show due impartiality, rather than viewpoint neutrality. The same holds for non-scientific issues, such as the war in Ukraine. It is not a breach of due impartiality that the BBC coverage is not neutral between Russia and Ukraine, but instead assumes the viewpoint that Russia’s invasion is unjust and in breach of international law. Similarly, few thought that Lineker’s critical remarks about Qatar’s human rights record during the 2022 World Cup coverage were in breach of the principle of impartiality. What due impartiality requires depends on the context.

The same applies to the question of who is bound by the duty of impartiality and when. The duty clearly binds BBC political correspondents in the course of appearing on a BBC programme. But few would argue that it applies to someone who works as a porter or a driver for the BBC, in activities undertaken outside work (e.g., speaking at a local council meeting). Lineker’s case appears to be much closer to the latter case, in that he is not a political correspondent, his contract is freelance, and his controversial remarks were made on his personal Twitter account rather than during his BBC broadcasting for Match of the Day. His remarks had nothing to do with his role at the BBC. The assessment of whether a worker’s speech is in breach of his employment duties is subject to the legal test of proportionality, as we explained above. The same speech uttered by a different worker, or by the same worker in a different context, may not constitute legitimate grounds for discipline or dismissal.

So what arguments might be advanced to show that Lineker’s suspension is proportionate? Some argue that in the eyes of the public Lineker is the ‘face’ of BBC sport, that his popularity is massively enhanced because of this, and that this makes his Twitter platform (boasting 8 million followers) an extension of his BBC platform. They conclude that it is not disproportionate for the BBC to expect Lineker to show impartiality in his Twitter posting. But this is a very weak argument for several reasons.

First, Lineker would arguably be an equally popular presenter and public figure even if he did not work for the BBC. A football legend, with a wealth of football knowledge and a talent for snappy commentary, he is more important to MOTD, than MOTD is to him. Besides, it is not clear how one would go about establishing empirical claims about the causal connection between a presenter’s popularity and the popularity of the BBC show they host. No doubt, hosting a BBC show helps a presenter’s popularity. But the BBC also seeks to attract talented presenters who – by definition – can easily get a job with major private media outlets.

Second, it is unreasonable to demand that the more popular a presenter is, the less liberty they have to express their political beliefs outside their BBC-related work. The BBC would eventually lose most of the talented presenters who would opt to work for private channels, as Andrew Marr did last year, or not join the BBC in the first place. It is hard to see how that inevitable outcome would be in the public interest, depriving BBC viewers from the best available talent in journalism.

Third, it is far from clear that the public perceives Gary Lineker’s Twitter account to be an extension of his BBC platform. No doubt, a large section of the population disagrees with Lineker’s left-leaning political views, and some are even outraged by them. But are they outraged because Lineker works for the BBC? And do they think that his views undermine the impartiality of the BBC? It is implausible to assume that the public will take Lineker’s political views as providing them with less reason to trust the objectivity and impartiality of the BBC news and political analysis (Nobody would of course argue that Lineker’s political views undermine the quality of his football analysis). The public understands that the two are separate and that BBC news reporting and analysis is in general distinctively rigorous, fair and fact-based. To think otherwise would be to take a very patronizing attitude towards the intellectual competence of the British public.

Fourth, suppose it is true that a significant section of the population thinks that a BBC freelancer’s Twitter account undermines the impartiality of the BBC. The BBC’s own approach to impartiality seems to be excessively concerned with the public’s perception of impartiality. But it cannot be the case that the BBC should impose duties of impartiality in all those activities that the public thinks are covered by impartiality. This would be question-begging because the public is, on this assumption, split on what should be covered. The BBC must ultimately make up its own mind on what, as an objective matter, should be governed by duties of impartiality, no matter what the public thinks. Its policies on the scope of impartiality should be designed in the light of principles of reasonableness, good-faith, fairness and so on. Invoking public perception is neither here nor there.

Fifth, a crucial factor influencing whether a suspension is proportionate is consistency. Does the Corporation take a consistent view on which activities are governed by stringent duties of impartiality? The need for consistency is significant because inconsistency often reveals illicit motives behind a worker’s suspension or dismissal. It is one thing to discipline or dismiss a worker based on a plausible account of what employer’s business interests are (in the case of the BBC the need for impartiality). It is a whole different thing to suspend a perfectly competent worker because the employer does not agree with their political beliefs. And here, the inconsistency of the BBC’s approach stands out. Taking the view that Lineker’s left-leaning tweets undermine the impartiality of the BBC is in clear tension with a number of other cases where BBC workers have been allowed to air right-leaning political views (as in the case of Andrew Neil and Alan Sugar) or associate themselves with the Tory party (as is the case with the current chairman of the BBC, Richard Sharp). The inconsistency suggests strongly that it is was the substance of Gary Lineker’s political views that got him suspended, not the fact that he expressed them. Were he to have tweeted instead that Suella Braverman’s refugee policies are humane and compassionate, he would most likely have presented MOTD last weekend.

Finally, it is an obvious inconsistency to expect the BBC duly to criticize violations of human rights law and international law when they involve foreign governments, but not when they involve the UK Government itself. The BBC was happy to allow Lineker to raise the human rights issues surrounding Qatar’s hosting of the World Cup on MOTD, before saying anything about football. But it found Lineker’s critique of the new Illegal Migration Bill to be a breach of due impartiality. What is the difference? The difference cannot be that it is the UK Government that sponsors the Bill because the BBC is meant to be independent from government and hold it to account. Nor can the difference be that, unlike Qatar’s human rights record, the British electorate is split on immigration and asylum. To take this approach would give the majority a veto on which human rights abuses the BBC can call out. It would entail, for instance, that were a sizeable section of the public to start looking favourably at Russia’s invasion of Ukraine, the BBC coverage of the invasion would have to change to a position of neutrality (start calling it, for instance, ‘conflict’ as opposed to invasion). And it is hard to see how making BBC reporting hostage to the swinging political views of the majority serves the public’s interest in objective reporting on political events.

A final point is worth emphasizing here. In the context of the current crisis, it was said that the BBC sought to negotiate Lineker’s social media usage. Often employment contracts or employer rulebooks contain terms on social media use that restrict workers’ rights. Lineker has appeared unwilling to compromise with the BBC in a manner that will limit his ability to express his political views on his social media. Even though Lineker is not an ordinary employee given how uniquely qualified and successful he is, it is important to highlight that in general in an employment relation contractual terms cannot reduce human rights in the workplace to zero, as the European Court of Human Rights emphasized in the case Barbulescu v Romania.

4. Conclusion: Human Rights, Free Speech and ‘British values’

The Home Secretary recently said that the European Court of Human Rights, whose jurisprudence is protective of free speech, is ‘at odds with British values’. She found Lineker’s remarks offensive. Elsewhere, however, such as in university life, the Government presents itself as a major champion of free speech and an opponent of ‘cancel culture’. One fears that the invocation of free speech is selective. In a liberal democracy the protection of free speech cannot be premised on whether the government agrees with the opinion being expressed.

Lineker is a much admired and loved presenter. His Twitter remarks brought the Illegal Migration Bill to the headlines by highlighting reasons why it is problematic. In refusing to be censored, Lineker had the right to freedom of expression on his side. His return to the BBC a few days after the crisis started is very welcome, and the BBC will hopefully learn the right lessons on due impartiality. Everyone’s focus should now return to the Illegal Migration Bill, as Lineker said in one of his tweets announcing his return: ‘A final thought: however difficult the last few days have been, it simply doesn’t compare to having to flee your home from persecution or war to seek refuge in a land far away’.

(Suggested citation: G Letsas and V Mantouvalou, ‘Censoring Gary Lineker,’ UK Labour Law Blog, 13 March 2023, available at https://uklabourlawblog.com/)