Landmark judgment on PSPO Regime has Significant Repercussions for Freedom of Expression
On 2 July 2018, the High Court handed down judgment in Dulgheriu v London Boroughof Ealing  EWHC 1667 (Admin). The case provides crucial insight into the ever lowering threshold at which freedom of expression can be curtailed in the United Kingdom. The judgment rejected a challenge to an Ealing Public Spaces Protection Order (PSPO) which bans any expression concerning abortion within 100 metres of a Marie Stopes abortion clinic.
The Ealing PSPO was instituted to address harassment and intimidation of women outside the Marie Stopes abortion clinic in Ealing. To achieve this, it criminalises a number of broadly worded activities, including:
“Protesting, namely engaging in any act of approval/disapproval or attempted act of approval/disapproval, with respect to issues related to abortion services, by any means. This includes but is not limited tographic, verbal or written means, prayer or counselling.” (Emphasis added)
The issue with this PSPO is that, under the ostensibly noble auspice of protecting women, it represents an unprecedented infringement on the right to freedom of expression – which includes the right to give or receive information.
Freedom of expression was curtailed on the basis that the right to privacy of the women attending and leaving the clinic came under Article 8 of the European Convention on Human Rights (para 97). This right was engaged on the basis that “[being] the focus of open public attention, often at the very moment when sensitivities are at their highest, is an invasion of privacy even where it occurs in a public place” (para 61).
The right to privacy has been applied here at a far lower threshold than the cases that were cited to support the ruling (paras 57-60), which all discussed the right of privacy in the context of recorded footage or images. In engaging the right to privacy at such a low threshold, the ability to distinguish innocuous expressions (such as offers of support and prayer) from harassing and intimidating behaviour (such as shouting, filming and taking photographs) is lost. The judgment appears to adopt the view of Ealing Council that “the location of the groups, independently of what they do whilst they are there is a problem in and of itself” (para 96). Furthermore, the judgment states that activities may be criminalised by a PSPO regime “without having been proven, particularly when considered in isolation, to be nocuous” (para 55).
Two key repercussions emerge from this judgment. The first is that those who would welcome the opportunity to engage with people offering support at the gates of the clinic are now denied this opportunity (this is briefly considered in the judgment at para 61).
Alina Dulgheriu, the applicant in the case, states that she was about to have an abortion but changed her mind when she was offered financial, practical and moral help outside a clinic. She now has a six-year-old daughter and offers the same support to women outside abortion clinics. Under the new PSPO however, people offering support have to stand 100 metres away from the clinic, which effectively eradicates the ability for women attending the clinic to engage with them.
The second repercussion is that the judgment provides a precedent that will allow protest groups to deliberately contribute to a breach of privacy in order to attract the necessary grounds for the infringement upon freedom of expression they seek in justifying a “buffer zone”.
The simultaneous presence of the pro-choice group ‘Sister Supporter’ and the pro-life group ‘Good Counsel Network’ was found to have created an atmosphere of tension (para 6). This atmosphere contributed to Sister Supporters’ cause which was to establish a buffer zone that excluded everyone. This means that buffer zone advocates can contribute to creating a problematic location, which in turn can lead to the grounds for justifying a PSPO being established.
It is typically the expression of shocking ideas that calls into question the value of freedom of expression. This judgment marks a new frontier in which expressions, which have been acknowledged as innocuous and would in fact be welcomed by some women, can be criminalised under the PSPO regime.