The most pernicious attacks on free speech in recent years have been those on private conduct and conversations.

Last week judgment was handed down in Dr Jereth Kok’s case, finding him guilty of professional misconduct for sharing satirical articles on his personal Facebook page.

But in some parts of the Western world the law is reaching beyond memes on social media and into jokes overheard in the pub.

That’s the reality facing the United Kingdom, where the new Employment Rights Bill is on the way to passing into law.

Dubbed the “Banter Bill”, it includes an offensive speech clause that applies to pubs, clubs, sporting fields, and essentially all public places where people gather.

The clause doesn’t apply to harassment or discrimination – those things are already illegal. Rather, as UnHerd’s Dominic Green reports:

Where the Banter Bill strikes new ground is by making employers liable for employees’ feelings about their customers, too. It will allow employees to define “harassment” under the lowest of thresholds: taking offense.

Specifically, Clause 20 of the Employment Rights Bill extends vicarious liability by requiring employers to take “all reasonable steps” to protect staff from non-specific harassment by third-party customers, thereby making businesses legally liable whenever an employee claims to be offended by a customer’s joke, opinion or other remark. 

Green goes on to note:

If a server feels offended when a drinker in a pub says there’s too much immigration (a sentiment shared by 63 percent of Britons in a recent Ipsos poll), or if a bartender feels offended when someone makes a rude joke about drag queens (in a country where the pantomime dame is a comic institution), their employer will be legally liable for their hurt feelings.

This is a direct assault on a basic right to free speech and, indeed, private speech and it signals a further degradation of the UK’s free speech regime.

Indeed, when people can be prosecuted because a passerby heard them say something, it cannot be said that free speech exists at all.

The right to express private opinions in an informal public setting is fundamental, and it’s why HRLA has been steadfast in defending people like Jereth Kok, who was sanctioned for his social media posts.

HRLA will continue to defend this fundamental right for all Australians.