Freedom of Expression & Freedom of the Media
'Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.' Article 19, Universal Declaration of Human ights. 1948.
Legal bases: Article 19 of the International Covenant on Civil and Political Rights (ICCPR); Article 10 of the European Convention on Human Rights; Article IV of the American Declaration of the Rights and Duties of Man; Article 13 of the American Convention on Human Rights; Article 9 of the African Charter on Human and Peoples’ Rights; Article 11 of the Charter on Fundamental Rights of the European Union.\
CONTENT:
The freedom of expression is a framework right containing several elements, including the freedom of information and the freedom of the press and the media in general. It is based on the freedom of opinion. Its manifestations range from the individual expression of opinions to the institutional freedom of the media. Freedom of opinion is an absolute civil right whereas freedom of expression is a civil and political right which can be subjected to certain restrictions.
Freedom of expression is a dual right in the sense of the freedom to impart, i.e. express opinions and ideas of all kinds, and the freedom to seek and receive information and ideas, both in any form – orally, in writing or in print, in the form of art, or through any other media, including new technologies. Frontiers must not be used to interfere with the right.
Main Elements of the Freedom of Expression:
• freedom to hold opinions without interference (freedom of opinion);
• freedom to seek, receive and impart information and ideas (freedom of speech, freedom of information);
• orally, in writing, or in print, in the form of art;
• through any media (freedom of the media);
• regardless of frontiers (freedom of international communication).
A major qualification of the freedom of expression is contained in Article 20 of the ICCPR which prohibits war propaganda and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The state is under an obligation to enforce those prohibitions by national legislation
Legitimate Restrictions of the Right
There can be no freedom without responsibility, as unlimited freedoms may lead to violation of other human rights, like the right to privacy. But restrictions need to be justified by the government with legitimate reasons, which can be scrutinised by public opinion and, as a last resort, judicial institutions. According to Article 29 of the Universal Declaration of Human Rights, the exercise of rights and freedoms of everyone is subject to limitations as are determined by law, in particular „for the purpose of securing due recognition and respect for the rights and freedoms of others [...]”. Article 19 (3) of the International Covenant on Civil and Political Rights reminds that the rights enumerated carry special duties and responsibilities. This shows that the freedom of expression and the media is not an absolute right.
3 types of restrictions are possible, provided they are imposed through legislation and considered necessary:
1. for the respect of the rights and reputation of others;
2. for the protection of national security or of public order;
3. for the protection of public health or morals.
The restrictions must be necessary for a legitimate purpose. Laws must be sufficiently precise and accessible to the public. According to legal interpretation rules, limitations of rights have to be interpreted restrictively. The main right should not be undermined and the restriction should not be larger as necessary to protect the rights of others and the basic public concerns mentioned. In Article 10 (2) of the European Convention on Human Rights, the list of possible restrictions is even longer, though, more precise. It states that the exercise of the freedom of expression may be subject to “[…] conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society […]”. Such restrictions may be justified by: •
• interests of national security, territorial integrity or public safety,
• for the prevention of disorder or crime, for the protection of health or morals,
• for the protection of the reputation or rights of others,
• for preventing the disclosure of information received in confidence, or
• for maintaining the authority and impartiality of the judiciary.
No other right has such a long list of reasons for exceptions. However, two major preconditions have to be met in order to legitimise the restriction of the right. The restriction has to be:
• prescribed by law and
• necessary in a democratic society.
“Prescribed by law” means that the restriction has to be an act of parliament and not an executive order by the government. Of particular importance is the qualification “necessary in a democratic society”. This links the freedom of expression and the media to the concept of an open and pluralist society which is governed by democratic means. The European Court of Human Rights has been very strict on these requirements as can be seen from the so-called Lingens case. In 1986, the European Court of Human Rights decided that a politician has to accept a higher degree of criticism than an ordinary person and cannot silence a journalist with reference to the need to protect his reputation. Accordingly, the laws on libel which allow the persecution of journalists who criticise persons in public positions have to be balanced with the freedom of the press. In this context, the principle of proportionality always needs to be taken into account.
According to Article 4 of the International onvention on the Elimination of All Forms of acial Discrimination (IED) of 1965, the dissemination of racist ideas, incitement to racial discrimination, or financing of racist activities shall be made a punishable offence by state parties, which shall also declare illegal and prohibit organisations and propaganda activities which promote and incite to racial discrimination. As of January 2012, the Convention has 175 parties. In 2008 the Council of the European Union adopted a Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law according to which serious acts of racism and xenophobia have to be made punishable by effective, proportionate and dissuasive criminal penalties in the European Union.
INTERCULTURAL PERSPECTIVES
Cultural differences lead to pluralism in the implementation of the freedom of expression. Compared to the USA, Europe and other states take a different attitude concerning hate speech which attacks the dignity of a group. Europe does not tolerate the advocacy of national, racial or religious hatred, in particular anti-Semitism, Nazi propaganda or the denial of the Holocaust and other forms of right-wing extremism, while the concept of the freedom of expression in the Constitution of the United States (First Amendment) at least partly also allows for such forms of expression. For example, the sentencing of the British author David Irving in Austria to three years of prison for denial of the holocaust in 2006 has been criticised even by Jewish authors in the United States as a violation of their understanding of freedom of speech, which should include also the “freedom for the thought we hate”. (Jeff Jacoby. The Boston Globe. 3 March 2006.)
WAR POPAGANDA AND ADVOCACY OF HATRED
Pursuant to Article 20 (1) of the ICCPR, any propaganda for war shall be prohibited by law, whereas Article 20 (2) requires also the prohibition of incitement to discrimination, hostility or violence through any advocacy of national, racial or religious hatred. The media were found to carry part of the responsibility for the wars in former Yugoslavia by propagating the war or instigating hatred and ethnic cleansing. The transmissions of Radio Mille Collines had a major role in the genocide in Rwanda in 1994 during which about one million people were killed. “Do not kill those inyenzi (cockroaches) with a bullet – cut them to pieces with a machete” was one of the broadcast statements, calling Hutus to slaughter Tutsis and Hutus who were sympathetic to the Tutsi cause. The radio station itself was founded in 1993 by family members of Hutu President Habyarimana, whose death was one of the main reasons for the outbreak of the genocide. The radio’s responsibility has been established by the International Criminal Tribunal for Rwanda based in Arusha (Tansania).
INTERNET freedom of expression: “Charter on Human Rights and Principles for the Internet” and the “10 Internet Rights and Principles” (available at: www.internetrightsandprinciples.org).
Other resources:
Protecting the right to freedom of expression under the European Convention on Human Rights
https://www.coe.int/en/web/freedom-expression/about-freedom-of-expression
Legal bases: Article 19 of the International Covenant on Civil and Political Rights (ICCPR); Article 10 of the European Convention on Human Rights; Article IV of the American Declaration of the Rights and Duties of Man; Article 13 of the American Convention on Human Rights; Article 9 of the African Charter on Human and Peoples’ Rights; Article 11 of the Charter on Fundamental Rights of the European Union.\
CONTENT:
The freedom of expression is a framework right containing several elements, including the freedom of information and the freedom of the press and the media in general. It is based on the freedom of opinion. Its manifestations range from the individual expression of opinions to the institutional freedom of the media. Freedom of opinion is an absolute civil right whereas freedom of expression is a civil and political right which can be subjected to certain restrictions.
Freedom of expression is a dual right in the sense of the freedom to impart, i.e. express opinions and ideas of all kinds, and the freedom to seek and receive information and ideas, both in any form – orally, in writing or in print, in the form of art, or through any other media, including new technologies. Frontiers must not be used to interfere with the right.
Main Elements of the Freedom of Expression:
• freedom to hold opinions without interference (freedom of opinion);
• freedom to seek, receive and impart information and ideas (freedom of speech, freedom of information);
• orally, in writing, or in print, in the form of art;
• through any media (freedom of the media);
• regardless of frontiers (freedom of international communication).
A major qualification of the freedom of expression is contained in Article 20 of the ICCPR which prohibits war propaganda and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. The state is under an obligation to enforce those prohibitions by national legislation
Legitimate Restrictions of the Right
There can be no freedom without responsibility, as unlimited freedoms may lead to violation of other human rights, like the right to privacy. But restrictions need to be justified by the government with legitimate reasons, which can be scrutinised by public opinion and, as a last resort, judicial institutions. According to Article 29 of the Universal Declaration of Human Rights, the exercise of rights and freedoms of everyone is subject to limitations as are determined by law, in particular „for the purpose of securing due recognition and respect for the rights and freedoms of others [...]”. Article 19 (3) of the International Covenant on Civil and Political Rights reminds that the rights enumerated carry special duties and responsibilities. This shows that the freedom of expression and the media is not an absolute right.
3 types of restrictions are possible, provided they are imposed through legislation and considered necessary:
1. for the respect of the rights and reputation of others;
2. for the protection of national security or of public order;
3. for the protection of public health or morals.
The restrictions must be necessary for a legitimate purpose. Laws must be sufficiently precise and accessible to the public. According to legal interpretation rules, limitations of rights have to be interpreted restrictively. The main right should not be undermined and the restriction should not be larger as necessary to protect the rights of others and the basic public concerns mentioned. In Article 10 (2) of the European Convention on Human Rights, the list of possible restrictions is even longer, though, more precise. It states that the exercise of the freedom of expression may be subject to “[…] conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society […]”. Such restrictions may be justified by: •
• interests of national security, territorial integrity or public safety,
• for the prevention of disorder or crime, for the protection of health or morals,
• for the protection of the reputation or rights of others,
• for preventing the disclosure of information received in confidence, or
• for maintaining the authority and impartiality of the judiciary.
No other right has such a long list of reasons for exceptions. However, two major preconditions have to be met in order to legitimise the restriction of the right. The restriction has to be:
• prescribed by law and
• necessary in a democratic society.
“Prescribed by law” means that the restriction has to be an act of parliament and not an executive order by the government. Of particular importance is the qualification “necessary in a democratic society”. This links the freedom of expression and the media to the concept of an open and pluralist society which is governed by democratic means. The European Court of Human Rights has been very strict on these requirements as can be seen from the so-called Lingens case. In 1986, the European Court of Human Rights decided that a politician has to accept a higher degree of criticism than an ordinary person and cannot silence a journalist with reference to the need to protect his reputation. Accordingly, the laws on libel which allow the persecution of journalists who criticise persons in public positions have to be balanced with the freedom of the press. In this context, the principle of proportionality always needs to be taken into account.
According to Article 4 of the International onvention on the Elimination of All Forms of acial Discrimination (IED) of 1965, the dissemination of racist ideas, incitement to racial discrimination, or financing of racist activities shall be made a punishable offence by state parties, which shall also declare illegal and prohibit organisations and propaganda activities which promote and incite to racial discrimination. As of January 2012, the Convention has 175 parties. In 2008 the Council of the European Union adopted a Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law according to which serious acts of racism and xenophobia have to be made punishable by effective, proportionate and dissuasive criminal penalties in the European Union.
INTERCULTURAL PERSPECTIVES
Cultural differences lead to pluralism in the implementation of the freedom of expression. Compared to the USA, Europe and other states take a different attitude concerning hate speech which attacks the dignity of a group. Europe does not tolerate the advocacy of national, racial or religious hatred, in particular anti-Semitism, Nazi propaganda or the denial of the Holocaust and other forms of right-wing extremism, while the concept of the freedom of expression in the Constitution of the United States (First Amendment) at least partly also allows for such forms of expression. For example, the sentencing of the British author David Irving in Austria to three years of prison for denial of the holocaust in 2006 has been criticised even by Jewish authors in the United States as a violation of their understanding of freedom of speech, which should include also the “freedom for the thought we hate”. (Jeff Jacoby. The Boston Globe. 3 March 2006.)
WAR POPAGANDA AND ADVOCACY OF HATRED
Pursuant to Article 20 (1) of the ICCPR, any propaganda for war shall be prohibited by law, whereas Article 20 (2) requires also the prohibition of incitement to discrimination, hostility or violence through any advocacy of national, racial or religious hatred. The media were found to carry part of the responsibility for the wars in former Yugoslavia by propagating the war or instigating hatred and ethnic cleansing. The transmissions of Radio Mille Collines had a major role in the genocide in Rwanda in 1994 during which about one million people were killed. “Do not kill those inyenzi (cockroaches) with a bullet – cut them to pieces with a machete” was one of the broadcast statements, calling Hutus to slaughter Tutsis and Hutus who were sympathetic to the Tutsi cause. The radio station itself was founded in 1993 by family members of Hutu President Habyarimana, whose death was one of the main reasons for the outbreak of the genocide. The radio’s responsibility has been established by the International Criminal Tribunal for Rwanda based in Arusha (Tansania).
INTERNET freedom of expression: “Charter on Human Rights and Principles for the Internet” and the “10 Internet Rights and Principles” (available at: www.internetrightsandprinciples.org).
Other resources:
Protecting the right to freedom of expression under the European Convention on Human Rights
https://www.coe.int/en/web/freedom-expression/about-freedom-of-expression
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