Freedom of expression is more than the freedom to speak. It is the freedom to question, challenge, create, criticise, receive information and participate in public life. At the same time, this freedom carries responsibilities and may be subject to certain limitations where necessary to protect the rights of others, public safety, or democratic values. It is one of the foundations of every democratic society—and one of its greatest responsibilities.
Why It Matters?
Freedom of expression allows people to exchange ideas, challenge authority, share knowledge, create art, report injustice and participate in public life. It enables scientific progress, democratic decision-making and cultural development. At the same time, protecting this freedom requires balancing it with the rights, safety and dignity of others.
What You'll Explore
Why It Matters?
Freedom of expression allows people to exchange ideas, challenge authority, share knowledge, create art, report injustice and participate in public life. It enables scientific progress, democratic decision-making and cultural development. At the same time, protecting this freedom requires balancing it with the rights, safety and dignity of others.
What You'll Explore
- What freedom of expression means and why it is a cornerstone of democratic societies.
- The international human rights framework
- When freedom of expression may be limited, and how democratic societies balance individual freedoms with the rights of others.
- Contemporary challenges, including hate speech, disinformation, war propaganda, media freedom and online expression.
- Different legal approaches, comparing European and United States perspectives on freedom of expression.
- Why protecting free expression matters for democracy, human dignity, participation and social progress.
What is Freedom of Expression?
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.
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:
CONTENT:
The freedom of expression is a framework right containing several elements:
International human rights framework:
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:
- freedom to express opinions and ideas of all kinds - from individual freedom of expression to freedom of media
- freedom to seek, receive and impart information and ideas - freedom of speech, freedom of information
- both without interference by public authority and regardless of frontiers - freedom of international communication.
- both in any form – orally, in writing or in print, in the form of art, or through any other media, including new technologies.
CONTENT:
The freedom of expression is a framework right containing several elements:
- freedom of to hold opinions without interference: from the right to freely express oneself to the institutional freedom of the media.
- freedom of information
- freedom and pluralism of the press and the media in general
- the right to inform
- the right to be be informed;
- the right to be silent
- the right to use any available means to share one’s thoughts, includes messages transmitted orally, on paper, on internet,
- artistic expression, including music, videos, paintings, sculptures, comics and the like.
- commercial expression
- political expression
International human rights framework:
- Article 19 of the International Covenant on Civil and Political Rights (ICCPR);
- Article 10 of the European Convention on Human Rights (ECHR), plus the constantly progressing protection offerend by the European Court of Human Rights (ECtHR)’s prolific jurisprudence;
- 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.
When Can Freedom of Expression Be Limited?
There can be no freedom without responsibility, as unlimited freedoms may lead to violation of other human rights, like the right to privacy or data protectection. Freedom of expression is not absolute, 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 [...]”.
3 types of restrictions are possible, provided they are imposed through legislation and considered necessary:
1. General rules for LEGITIME LIMITATIONS
The exercise of these freedoms, since it carries with it duties and responsibilities for other people's rights and freedoms, may be subject to such formalities, conditions, restrictions or penalties. Art. 10 (2) ECHR imposes a set of 3 conditions for these limitations to be legitimate (proportionality test):
1. must be prescribed by law - which means that the restriction has to be an act of parliament and not an executive order by the government.
2, must be necessary in a democratic society - which implies verifying whether the national intervention corresponds to a “pressing social need" [ ECtHR, Handyside v UK, para. 48]
3. must be in the 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.
2. HATE SPEECH
Not all forms of expression are protected - expressions which spread, incite, promote or justify hatred based on intolerance fall as hate speech.
What is hate speech? It is any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.” (The United Nations Strategy and Plan of Action on Hate Speech)
3. WAR PROPAGANDA & ADVOCACY OF HATRED
Article 20 of the ICCPR 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.
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).
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 [...]”.
3 types of restrictions are possible, provided they are imposed through legislation and considered necessary:
- for the respect of the rights and reputation of others;
- for the protection of national security or of public order;
- for the protection of public health or morals.
1. General rules for LEGITIME LIMITATIONS
The exercise of these freedoms, since it carries with it duties and responsibilities for other people's rights and freedoms, may be subject to such formalities, conditions, restrictions or penalties. Art. 10 (2) ECHR imposes a set of 3 conditions for these limitations to be legitimate (proportionality test):
1. must be prescribed by law - which means that the restriction has to be an act of parliament and not an executive order by the government.
2, must be necessary in a democratic society - which implies verifying whether the national intervention corresponds to a “pressing social need" [ ECtHR, Handyside v UK, para. 48]
3. must be in the 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.
2. HATE SPEECH
Not all forms of expression are protected - expressions which spread, incite, promote or justify hatred based on intolerance fall as hate speech.
What is hate speech? It is any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.” (The United Nations Strategy and Plan of Action on Hate Speech)
3. WAR PROPAGANDA & ADVOCACY OF HATRED
Article 20 of the ICCPR 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.
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).
Freedom of expression protects not only ideas that are favourably received but also those that "offend, shock or disturb." |
The attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life" |
Political criticism deserves particularly strong protection.. |
4. INTERFERENCE WITH PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS
When freedom of expression clashes equally protected rights, the ECtHR’s analysis consists in finding the right balance between the freedom of expression and the conflicting freedom. The interference can be legitimate when it is justified:
Defamation and libel
The right to respect the private and family life is also protected by national and supranational legal sources, such as Art. 7 CFR and correspondingly Art. 8 ECHR. It might conflict freedom of expression due to their different purposes:
Journalists special rights
For ex, when the right to inform clashed data protection and reputation, ECtHR jurisprudence used the right to inform as a justification for providing special treatment to media and journalists. 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. As a matter of fact, journalists:
- may be ‘exempted’ from liability for insult or defamation,
- may process personal data without the consent of the individuals concerned, and
- may exercise a right to access sources against public bodies which have an obligation to provide information.
Related pages:
When freedom of expression clashes equally protected rights, the ECtHR’s analysis consists in finding the right balance between the freedom of expression and the conflicting freedom. The interference can be legitimate when it is justified:
- by an overriding requirement of public interest [Decision as to admissibility by the ECtHR: app. no. 40485/02, Nordisk Film & TV A/S v. Denmark (2005)] or
- by a legitimate aim such as the protection of the rights of others [ECtHR, Hachette Filipacchi Associés (Paris-Match) v. France (2007)].
Defamation and libel
The right to respect the private and family life is also protected by national and supranational legal sources, such as Art. 7 CFR and correspondingly Art. 8 ECHR. It might conflict freedom of expression due to their different purposes:
- Freedom of expression allows the dissemination and publication of information and facts related to the private lives of individuals when this information serves a public interest and/or debate.
- Such dissemination may undermine a person’s reputation, leading to a claim for defamation.
- In fact, the purpose of provisions on defamation is to protect individuals’ reputations from damage caused by the dissemination of false or offensive information or opinions about them to third parties.
- Equally, such provisions may aim to protect specific state symbols (such as the national flag or anthem).
- These provisions may be both criminal and civil and may relate both to oral defamation (slander) and written defamation (libel).
Journalists special rights
For ex, when the right to inform clashed data protection and reputation, ECtHR jurisprudence used the right to inform as a justification for providing special treatment to media and journalists. 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. As a matter of fact, journalists:
- may be ‘exempted’ from liability for insult or defamation,
- may process personal data without the consent of the individuals concerned, and
- may exercise a right to access sources against public bodies which have an obligation to provide information.
Related pages:
US vs EU PERSPECTIVES on 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
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.)
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INTERNET freedom of expression:
The Charter on Human Rights and Principles for the Internet is a global framework developed by the Internet Rights and Principles Coalition at the UN Internet Governance Forum (IGF) traslating international human rights law to the online environment and outlines 10 core principles for digital governance. |
Online platforms may bear responsibility for unlawful comments under certain circumstances." |
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Freedom in Practice - FREYR CHALLENGE:
Everyday USE of freedom of expression :
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Reflect
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Resources:
Protecting the right to freedom of expression under the European Convention on Human Rights
About Freedom of Expression, CoE
Study on “Freedom of expression and defamation. A study of the case-law of the European Court of Human Rights” , Council of Europe
Protecting the right to freedom of expression under the European Convention on Human Rights
About Freedom of Expression, CoE
Study on “Freedom of expression and defamation. A study of the case-law of the European Court of Human Rights” , Council of Europe
