Introduction
Described as both a bedrock of democratic society and a touchstone of all other human rights, the right to freedom of expression is much lauded by its advocates. But it is also routinely lambasted by its detractors, who variously find that it offers too much, too little or too selective protection to controversial, harmful or otherwise problematic speech. The legal limits of freedom of expression do not always align neatly with broad ethical principles or subjective individual or societal expectations. In the absence of such neat alignment, debate about the actual and desired limits of the right to freedom of expression will always be vigorous.
The main aim of this knowledge package is to trace the contours of the right to freedom of expression, primarily under the system of protection that has been built around European Convention on Human Rights (ECHR or the Convention). How far does protection reach? Where does it end? When is protection not enough, or in other words, when are positive or promotional measures required to ensure that the exercise of the right to freedom of expression is truly effective in practice? Which principles has the European Court of Human Rights (the Court) developed to guide it in its interpretive role? How should those principles be operationalized by States Parties to the Convention? And are the earlier principles still fit for purpose in the digital age? How does the dynamic interplay between the right to freedom of expression and other Convention rights colour the Court’s case-law? These are some of the key questions that will be addressed in this knowledge package.
Intended learning outcomes
After studying the materials in this knowledge package, you should be able to:
- Apply the European Court of Human Rights’ methodologies to determine whether Article 10 ECHR, has been violated in a specific case;
- Synthesize the main principles that shape the Court’s approach to freedom of expression;
- Give a critical analysis of how the Court applies and/or adapts its key principles to the digital age;
- Assess the importance of States’ positive obligation to ensure a favourable environment for participation in public debate by everyone;
- Provide reasoned guidance, with references to case-law, on where to draw the outer limits of the right to freedom of expression;
- Synthesize the main principles that shape the Court’s approach to hate speech.
Contents and structure
The blogpost explains how the right to freedom of expression, as guaranteed by Article 10 ECHR and as interpreted by the European Court of Human Rights, offers robust protection for participation in public debate. The scope of the right is broad. The exercise of the right, however, is governed by duties and responsibilities and subject to certain narrowly-drawn limitations that are necessary in democratic society. The blogpost sets out a selection of key principles developed by the Court and which guide its approach to the right to freedom of expression. The blogpost thus has a foundational place, both in this knowledge package and in relation to the other knowledge packages.
The infographic is a cartographical representation of the main features of the right to freedom of expression. More specifically, the map of the Republic of Expressia visualizes selected principles, features and challenges that shape the protection of freedom of expression in contemporary society. The legal landscape has various societal, ethical, epistemic, political, economic, cultural and other ‘physical’ features.
The video complements the blogpost by mapping the outer limits of the right to freedom of expression, under the ECHR. It does so by examining how the Court engages with hate speech. The right to freedom of expression typically does not extend to hate speech. The term hate speech is a convenient shorthand phrase, but it lacks legal precision and it has not (yet) been defined by the Court. In practice, the Court approaches hate speech in different ways, while invoking different articles of the Convention (eg. Articles 10, 17 and 8). All of this has given rise to some (apparent) inconsistencies in the Court’s case-law. The video seeks to clarify the Court’s different approaches and the main principles it has developed in its case-law.
The workbook contains various questions to help you check whether you have understood the key concepts, principles and theories set out in this knowledge package. You can use the exercises to engage more actively with the subject matter.
In the two reading lists you will find a selection of books, articles and other resources – mostly open access – that may be useful to learn more about one or more of the topics covered that have sparked your interest.