The acceptable limits of free speech for professionals remains a sensitive and evolving issue for regulators. Recent High Court appeals Husain v SRA [2025] EWHC 1170 (Admin) and Adil v General Medical Council [2023] EWHC 797 (Admin) have clarified how regulators are approaching this issue when it relates to offensive, racist or discriminatory social media activity.

Social media platforms are an increasingly important forum for the exchange of ideas, which in many instances is entirely positive. However, for regulated professionals, when expression and exchange on such platforms become offensive, discriminatory or abusive, then regulation is entirely legitimate and indeed vital to maintain expected standards and public confidence in the professions. Alongside these two recent High Court judgments, many regulators have issued (or are in the process of issuing) guidance on the use of social media by those they regulate.

This insight guides legal experts through relevant considerations when it comes to regulating professionals in respect of offensive and racist social media posts. It also refers to some recent High Court cases that show the law being applied in practice.

Freedom of expression: a qualified right

Freedom of expression/speech, protected under Article 10 of the European Convention on Human Rights, is a cornerstone of human rights and of a democratic society, but it is not an absolute right. As such, it can be interfered with or restricted in certain circumstances “prescribed by law”, as long as such interference is legitimate and proportionate.

In the context of the regulation of professionals, the obligation to maintain public trust in the profession is sufficient for the purposes of this condition. Regulatory bodies are therefore entitled to place reasonable and proportionate restrictions on those subject to their professional codes in respect of speech and expression.

In Husain v SRA, Mr Justice Chamberlain (Chamberlain J) endorsed the reasoning of the panel in Holbrook v BSB (Case 2021/4441, 25 March 2022): “The right to political speech is not entirely unfettered and would lose its highly protected status where the manner of expression of the political view involves gratuitous personal abuse, derogatory racist or sexist language... or ‘grossly offensive and disparaging’ Facebook posts which were ‘targeted and misogynistic…”. Although that reasoning was given in the context of political speech, it remains a helpful starting point when considering free speech in the context of social media posts more generally.

The threshold: when does speech become “seriously offensive”?

One important point reinforced by the High Court and tribunals is that, given the fundamental importance of freedom of expression (particularly political speech), there is a high threshold which must be crossed before a tribunal may justifiably interfere with a registrant’s Article 10 rights. This has sometimes been expressed as speech that is “seriously offensive”.

This reflects the long-established principle that freedom of expression protects not only the inoffensive, but also speech which may be irritating, contentious or provocative. As recognised in DPP v Redmond-Bate (1999) 163 JP 789, [2000] HRLR 249, “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having”. Redmond-Bate was reaffirmed in more recent authority, including in R. v Casserly [2024] EWCA Crim 25, where the Court of Appeal emphasised the high threshold for criminalising offensive speech and made clear that political speech is the most protected form of speech: “In a democratic society political speech is to be given particular weight (see in particular Connolly at [14]). The Strasbourg jurisprudence identifies a hierarchy of speech, with political speech at its apex. The greater the value of the speech in question, the weightier must be the justification for interference”.

Speech which is merely “offensive” may therefore not be enough to justify regulatory intervention. In each case, there will have to be close consideration of the facts to establish that the speech has gone beyond “the wide latitude allowed for the expression of a political belief”(Holbrook v BSB endorsed by Chamberlain J in Husain v SRA) or is unacceptably offensive for another reason such as being racist or gratuitously abusive (for general non-political speech/expression).

There is still a high bar to cross – even for non-political offensive or inappropriate expression – for a tribunal to be able to conclude that the conduct in question amounts to professional misconduct or a breach of the expected principles or standards. This is entirely consistent with the concept of a finding of misconduct in respect of healthcare practitioners arising only if the conduct is a sufficiently serious and ‘deplorable’ departure from expected standards (Roylance v GMC (No 2) [2000] 1 AC 311 and Nandi v GMC [2004] EWHC (Admin)), which is the equivalent to considering whether there has been a breach of the SRA Principles, for example, as in Husain v SRA.

Where a post is racist or antisemitic, as in the case of Husain v SRA, that is likely to lead to the conclusion that the posts were inherently offensive/inappropriate and sufficiently so to pass the threshold. Where a post is accompanied with derogatory or abusive language, it again may more obviously cross the threshold into being seriously offensive because of the tone and language used, even if the belief or message being expressed is not seriously offensive in and of itself.

Chamberlain J’s judgment in Husain v SRA makes clear that as long as a panel’s decision has clearly grappled with the level of offensiveness, even if in reference to it amounting to the breach of standards/principles alleged, then they do not need to have expressly labelled the conduct as “seriously offensive”.

Connection to professional life

Another key consideration is the extent to which regulators can act on conduct that takes place outside a professional setting. It is not necessary for a professional to be immediately identifiable as a member of a profession for regulatory action to be justified. However, reference or a link to something identifying a professional is an element of the factual matrix relevant to the panel’s assessment. In circumstances where practitioners operate public social media accounts and are identifiable as professionals, regulatory interference will often be justified where they publish material on those platforms that is seriously offensive, racist or discriminatory.

Ultimately, the question for the panel will be whether the conduct was likely to undermine trust and confidence in an individual professional or the profession as a whole – a question for assessment on the basis of the facts of the individual case.

As referred to in Husain v SRA: “Although Article 8 protected an individual’s private life, the Tribunal considered that Beckwith v SRA [2020] EWHC 3231 (Admin) showed that codes of professional practice may regulate what professionals do away from work if it realistically touched on the practice of their profession or upon the standing of the profession in the eyes of the public.” This echoes what was set out in Diggins v BSB [2020] EWHC which referred to there being no “‘bright line’ between the professional and private realms”.

Objective and subjective approaches

Objective

Determining whether social media posts will be considered offensive can in the first instance be approached by applying an objective test. This means that offensiveness depends not on the individual’s intent, but on whether the language or content is objectively offensive, inappropriate, racist or discriminatory. It will therefore be the informed reasonable observer test as set out in Chamberlain J’s judgment in Husain v SRA that should be applied.

Prior to Husain, PSA v GPhC v Nazim Ali [2021] EWHC 1692 had also confirmed this objective test approach for cases where allegations are framed which do not rely on, or refer to, motivation/intent. Ali further indicated that where there are multiple posts, cumulative assessment of all such posts is appropriate and it is therefore not necessary for each to be considered – and found to be offensive – in isolation.

Subjective

Allegations can also be drafted to reflect whether the speech is intentionally offensive or discriminatory (or whether the speech is racially motivated or intentionally antisemitic, for example). This requires panels to delve into the motivation or intention of the person making the posts.

The case of Lambert-Simpson v HCPC [2023] EWHC 481 (Admin) set out a test to apply in such instances:

• the act in question (for example, the posting of content on a social media site) must have a purpose behind it which at least in significant part is referable to race; and

• the act must be done in a way showing hostility or a discriminatory attitude to the relevant racial group.

The Court also gave a clear indication that, when considering the intentions behind racist language, the suggestion that it was done to “get a laugh” among friends was unlikely to detract from the fact that it was referable to race and done in a way showing hostility and/or a discriminatory attitude. It is however again important to focus on what has actually been said or done, rather than implying a view that may never have been intended by the individual.

Charges can be drafted to reflect both that the language used is objectively offensive (for whatever indicated reason) as well as intentionally so. A panel can consider those options as alternatives or reach a decision that the posts in question are both objectively offensive and intentionally so/racially motivated.

Conclusion

The limits of freedom of expression for regulated professionals are becoming clearer with each High Court decision on the subject. The right to freedom of expression cannot be relied upon to justify hateful or offensive speech which is likely to undermine professional standards and public confidence in the professions. This qualification on the right to freedom of expression is similarly replicated when dealing with cases related to the expression of ‘protected beliefs’; a similarly complex issue.

Professionals can expect particularly severe sanctions where racist or antisemitic language is used, or where other language is seriously and objectively or intentionally offensive, when no genuine remorse or insight is demonstrated, or where the offending language and approach is maintained and continued at hearing.

Severity will also depend on the nature of the profession in question in relation to what the offending language is about. For a doctor to express baseless and dangerous conspiracy theories about a medical/health topic is likely to be considered serious if the professional uses their status and qualifications to engender trust in them and their views, and a suspension was not a disproportionate or inappropriate sanction (Adil v General Medical Council). A solicitor repeatedly tweeting in terms that were both grossly offensive and antisemitic (and in other instances racist) over a period of nine months and with an element of bullying, as well as showing no insight or remorse, justified him being struck off (Husain v SRA).

Both the recent High Court decisions and the guidance being issued by regulatory bodies is painting a consistent picture that offensive posts on social media will be regulated and will potentially lead to practice-altering sanctions for those who engage in it.

How Capsticks can help

Capsticks’ market-leading professional regulatory team advises a wide range of regulators on complex issues at the intersection of freedom of expression and professional standards, including those explored in this insight. Our specialists are experienced in cases involving offensive and discriminatory social media activity, from drafting allegations through to tribunal advocacy and appeals. If you have any queries around what’s discuss in this article, please contact a member of our Regulatory team.