Freedom of expression: scope and limits

Questions

1. List three positive obligations of States to guarantee different aspects of the right to freedom of expression. In which judgments did the European Court of Human Rights recognize the selected positive obligations? [Blogpost]
2. What are the main characteristics of a favourable environment for public debate? [Blogpost]
3. Give a critical analysis of the relationship between the Handyside principle and “gratuitously offensive” speech in cases such as Otto-Preminger-Institut v. Austria and İ.A. v. Turkey. [Blogpost, video]
4. Explain, in your own words, the different ways in which the European Court of Human Rights approaches content that potentially amounts to hate speech. [Video]

Exercises

1. The Republic of Expressia (Infographic) – positioning exercise
[a higher cognitive level assignment demanding broad perspectives on, and keen insights into, the theory and practice of the right to freedom of expression]

Variant A

• Divide the group into sub-groups of two or three participants.
• Print several copies (one for each sub-group) of the map of the Republic of Expressia in a very large format.
• Draw up a list of European Court of Human Rights’ judgments (and decisions) dealing with the right to freedom of expression for discussion in class.
• Invite each sub-group to write the names of the cases on post-its and to stick the post-its on appropriate parts of the map.
• Each sub-group should then, in turn, explain their positioning to the group. Participants from other sub-groups may question or challenge their positioning.

Variant B

• Ask participants to study the map of the Republic of Expressia before class/the training and to prepare speaking notes to explain why the cartographer has positioned the different physical features in their current locations.
• During class, call on participants to explain the meaning and current positioning of specific physical features on the map.
• A bonus question could be: would it be more logical to reposition any of the physical features elsewhere on the map (and if so, where and why?)?

2. Freedom of expression: from individual stories to a general narrative
[a higher cognitive level assignment demanding a very good grasp of the bigger picture aspects of the right to freedom of expression]

Present a selection of (eg. 4/5/6) photos of famous people who have been affected by limitations on/threats to their right freedom of expression, and/or whose own behaviour has restricted or undermined the free expression rights of others (eg. Salman Rushdie, Maria Ressa, Donald Trump, Greta Thunberg, etc.).

Let participants pick a photo; give them some preparation time and then let them tell the universal story of freedom of expression from the perspective of the chosen personality. The aim is to include as many aspects and insights from the KP1 materials as possible in the story. Other participants could be encouraged to supplement the stories with additional points and references.

3. 12 Principles on freedom of expression and defamation
[a higher cognitive level assignment for law students and legal professionals]

Instruction

The principles on the relationship between the right to freedom of expression and defamation that are set out below have been derived from the case-law of the European Court of Human Rights. Using the Court’s HUDOC database and other suitable (online) sources and resources, try to trace all of these principles back to the judgments in which they were first articulated.

Freedom of expression and defamation

Freedom of expression

1. The right to freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights, doesn’t just protect uncontroversial information and ideas. It also covers information and ideas that may offend, shock or disturb the government or any group in society. This is important because the values of pluralism, tolerance and broadmindedness are key features of democratic society.
2. Everyone should be able to participate freely and without fear in discussions and debates on matters of public interest. Politics, current affairs, health matters, religion, culture and history are all examples of topics of public interest, unlike individuals’ strictly private relationships or family affairs.
3. While everyone – including bloggers, whistle-blowers, academics, members of civil society organisations, etc. – should be able to participate in public debate, it is particularly important for journalists and the media to be able to do so because of their ability to spread information and ideas widely, and thereby contribute to public opinion-making. They have the task of imparting information and ideas on matters of public interest, which the public has a right to receive. Journalists, the media and a growing range of other actors can also act as public watchdogs, by bringing information to light and by exposing wrongdoing and corruption by those in power.
4. When a law or other measure or sanction discourages the media from participating in public debate, there is a “chilling effect” on freedom of expression that affects society as a whole. The person affected by the measure and others may become afraid to exercise their right to freedom of expression in a bold manner and as a result engage in self-censorship, which weakens public debate.
5. In order to avoid a “chilling effect”, it is very important that any measures or remedies interfering with the right to freedom of expression are governed by the principle of proportionality.

Defamation

6. Criminal measures have far-reaching consequences for those affected by them. Thus, by their very nature, criminal measures have a “chilling effect” on public debate. A prison sentence for a press offence will be compatible with freedom of expression only in exceptional circumstances, namely when other human rights have been seriously impaired, for instance in cases of hate speech or incitement to violence.
7. The purpose of defamation laws is to protect the reputations of individuals from injury. A defamatory statement is a false or untrue statement of fact that harms the reputation or good name of a living person. In exceptional circumstances, this may also apply to a company or other entity having a legal status, but a commercial reputation does not have the same moral dimension as an individual reputation. Defamation laws should only apply to the deceased in very exceptional circumstances. Defamation laws should not be used to protect (State) symbols, flags, anthems, etc.
8. Politicians (including heads of state and government and members of government), public officials or public figures (including business people and even celebrities) must tolerate higher levels of criticism than other individuals. By deciding to enter public life, they knowingly lay themselves open to close scrutiny of their words and actions. While they are entitled to protection of their reputation, even when they are not acting in a private capacity, the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.
9. Everyone who exercises the right to freedom of expression has certain duties and responsibilities, the scope of which varies in different contexts. Journalists and the media must not cross certain lines, in particular in respect of the reputation and rights of others. In principle, they are expected to act in good faith in order to provide accurate and reliable information to the public in accordance with the ethics of journalism.
10. Facts and opinions or value judgments are not the same: the existence of facts can be demonstrated, but it is not possible to prove the truth of opinions or value judgments. A requirement to prove the truth of a value judgment infringes the right to freedom of opinion. A value judgment should, however, have adequate factual basis, as even a value judgment without any factual basis to support it may be excessive.
11. It is important that defamation laws include a range of defences that safeguard the right to freedom of expression. Journalists and the media face deadlines and as news is a perishable commodity, to delay its publication, even for a short period, may well deprive it of all its value and interest. There must therefore be a range of defences available to them in legal proceedings concerning alleged defamatory statements, e.g., that there is a high public interest in the topics they are treating; the truth or accuracy of their statements; their good faith in publishing the statements; that their statements are fair comments, and that they have acted in accordance with their duties and responsibilities.
12. Contributions to public debate can be made by different actors, through different media and in different styles. The right to freedom of expression includes, especially for journalists and the media, the freedom to select, edit and present information and ideas in whatever way they like. This means that they may use exaggeration, provocation, irony, satire or other styles or techniques, as long as their expression is not “gratuitously” offensive. In principle, journalists, the media and online intermediaries should not be held liable for defamatory statements by third parties, unless there are exceptional circumstances which would warrant such liability. These freedoms are very relevant when considering the proportionality of interferences with the right to freedom of expression.