Freedom of Speech and Expression

What does freedom of speech and expression mean?

Freedom of speech and expression, is considered as the basic freedom that
a democracy awards its people, many political theorists are of the opnion
that freedom of speech and expression acts both as a means and end for
establishing liberty.
It includes the right to express ones opinion unhindered unfettered by the
fear of retribution.
Freedom of speech and expression gets illustrated as below:
Freedom of speech is the right to communicate one's opinions and ideas without fear of
government retaliation or censorship.
The term freedom of expression is includes any act of seeking, receiving and imparting
information or ideas, regardless of the medium used.

INTERNATIONAL LAW REGARDING FREEDOM OF SPEECH

AND EXPRESSION
The right is enshrined in Article 19 of the International Covenant on Civil and Political Rights,
Article 10 of the European Convention on Human Rights, Article 13 of the American
Convention on Human Rights and Article 9 of theAfrican Charter on Human and Peoples'
Rights.[10]

The right to freedom of expression is recognized as a human right under article 19 of

the Universal Declaration of Human Rights and recognized in international human rights
law in the International Covenant on Civil and Political Rights (ICCPR)

The statutory provisions of the article are as below:

Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his
choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public
health or morals.
Article 19 additionally states that the exercise of these rights carries "special duties
and responsibilities" and may "therefore be subject to certain restrictions" when
necessary "[f]or respect of the rights or reputation of others" or "[f]or the protection of
national security or of public order (order public), or of public health or morals"
The CCPR during its 19 session commented on the provisions of the article 19 which
are listed as follows:
Paragraph 1 requires protection of the "right to hold opinions without interference". This
is a right to which the Covenant permits no exception or restriction. The Committee
would welcome information from States parties concerning paragraph 1.
Paragraph 2 requires protection of the right to freedom of expression, which includes not
only freedom to "impart information and ideas of all kinds", but also freedom to "seek"
and "receive" them "regardless of frontiers" and in whatever medium, "either orally, in
writing or in print, in the form of art, or through any other media of his choice". Not all
States parties have provided information concerning all aspects of the freedom of
expression. For instance, little attention has so far been given to the fact that, because of
the development of modern mass media, effective measures are necessary to prevent such
control of the media as would interfere with the right of everyone to freedom of
expression in a way that is not provided for in paragraph3. Many State reports confine
themselves to mentioning that freedom of expression is guaranteed under the Constitution
or the law.

However, in order to know the precise regime of freedom of expression in law and in
practice, the Committee needs in addition pertinent information about the rules which
either define the scope of freedom of expression or which set forth certain restrictions, as
well as any other conditions which in practice affect the exercise of this right. It is the
interplay between the principle of freedom of expression and such limitations and
restrictions which determines the actual scope of the individual's right. 4.
Paragraph 3 expressly stresses that the exercise of the right to freedom of expression
carries with it special duties and responsibilities and for this reason certain restrictions on
the right are permitted which may relate either to the interests of other persons or to those
of the community as a whole. However, when a State party imposes certain restrictions
on the exercise of freedom of expression, these may not put in jeopardy the right itself.
Paragraph 3 lays down conditions and it is only subject to these conditions that
restrictions may be imposed: the restrictions must be "provided by law"; they may only
be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3;
and they must be justified as being "necessary" for that State party for one of those
purposes.

Europeon convention
Article 10 provides the right to freedom of expression, subject to certain restrictions that
are "in accordance with law" and "necessary in a democratic society". This right includes
the freedom to hold opinions, and to receive and impart information and ideas, but allows
restrictions for:

interests of national security

territorial integrity or public safety
prevention of disorder or crime
protection of health or morals
protection of the reputation or the rights of others
preventing the disclosure of information received in confidence
maintaining the authority and impartiality of the judiciary

American convention
Article 13. Freedom of Thought and Expression
1. Everyone has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the form of art, or through any
other medium of one's choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be
subject to prior censorship but shall be subject to subsequent imposition of liability,
which shall be expressly established by law to the extent necessary to ensure:
a.

respect for the rights or reputations of others; or

b.

the protection of national security, public order, or public health or morals.

3. The right of expression may not be restricted by indirect methods or means,

such as the abuse of government or private controls over newsprint, radio broadcasting
frequencies, or equipment used in the dissemination of information, or by any other
means tending to impede the communication and circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments
may be subject by law to prior censorship for the sole purpose of regulating access to
them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious
hatred that constitute incitements to lawless violence or to any other similar action
against any person or group of persons on any grounds including those of race, color,
religion, language, or national origin shall be considered as offenses punishable by law.

Case laws where freedom of expression was upheld by

the international courts
ECHR: The Sunday Times v. The United Kingdom

26 April 1979, Application No. 6538/74 (European Court of Human Rights

Theme:

Other content restrictions

Sub-Issues:

Administration of justice

Test:

Provided by law, legitimate aim, necessity

Penalty:

Injunction

Decision:

Violation of the right to freedom of expression (Article 10 ECHR); eleven votes to

nine

Jurisdiction: European Court of Human Rights: United Kingdom

[F]reedom of expression constitutes one of the essential foundations of a democratic

society; subject to [legitimate restrictions] it is applicable not only to information or
ideas that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb the State or any sector of
the population.
These principles are of particular importance as far as the press is concerned. They
are equally applicable to the field of the administration of justice, which serves the
interests of the community at large and requires the co-operation of an enlightened
public

The Court also observed that: The right to freedom of expression] guarantees not only
the freedom of the press to inform the public but also the right of the public to be
properly informed. (para. 66)
In the present case, the families of numerous victims of the tragedy had a vital
interest in knowing all the underlying facts and the various possible solutions.

The case had been stagnant for several years and it was, at the very least, far from certain
that the parents' actions would have gone on to trial. There had also been no public
enquiry. Furthermore, while it was true that, had the article appeared at the intended
time, the company would have felt obliged to develop in public their arguments on
the facts of the case, this might have served the public purpose of putting a brake on
speculative and unenlightened discussion. For all these reasons, the Court concluded
that the interference did not correspond to a social need sufficiently pressing to
outweigh the public interest in freedom of expression within the meaning of the
Convention. There had accordingly been a violation of the right to freedom of
expression

Case of Kankanamge v. Sri Lanka

Communication No. 909/2000: Sri Lanka 26/08/2004

Theme:

Defamation, Journalists and media workers

Sub-Issues:

Criminal defamation

Test:

Necessary for respect of the rights or reputations of others

Penalty:

Several indictments against the author, three of which were still pending
before the High Court at the time of the submission of the communication

Decision:

Violation of Article 19 ICCPR; unanimous

Jurisdiction: Human Rights Committee (International Covenant of Civil and Political

Rights)

The Committee had regard to the nature of the author's profession and the
circumstances at that time, including the fact that previous indictments
against the author were either withdrawn or discontinued. Given this context
the Committee considered that to keep pending the indictments for the
criminal offence of defamation for a period of several years left the author in
a situation of uncertainty and intimidation, despite the author's efforts to
have the indictments terminated, and thus had a chilling effect which unduly
restricted the author's exercise of his right to freedom of expression. The
Committee thus concluded that the facts revealed a violation of article 19 of
the Covenant, read together with article 2(3).

18 April 2013, European Court of Human Rights, Application no. 26419/10

Themes: Journalists and media workers
Sub-issues: Search and seizure of material
Test: Necessity in a democratic society
Penalty: search of publishing companys premises and seizure of journalists materials
Decision: Violation of the right to Private and family life (Article 8), six votes against
one; Violation of the right to freedom of expression (Article 10), Unanimity
Jurisdiction: European Court of Human Rights

to the violation of article 10:

The ECtHR recalled the key role of the protection of sources in guaranteeing the freedom
of the press. It noted that the absence of such protection could dissuade journalistic
sources to help the press informing the public on questions of public interest. This would
then stop the press from being the watchdogs of democracies.
The Court, first, defined what information can allow identification of a source. It
considered that these are all circumstances around the obtaining of information by a
journalist from a source and the unpublished part of the information given by a source
to a journalist. It then noted that even if it did not appear that other sources than those
already published in the article were revealed, the police -while searching the applicants
premises- was able to access information that the journalist did not intend to publish and
susceptible to identify other sources. Following these two observations it decided that
there had been an interference with the applicants right to receive or communicate
information as found in article 10 of the Convention.
Next the ECtHR considered whether the interference was provided by the law, had a
legitimate purpose and was necessary for a democratic society. According to the Court
the first two requirements were met.
When considering whether the restriction was necessary, the judges noted that the
formulation of the search warrant was too broad as it gave an extensive power to the
police by leaving them the choice to decide what to seize. It also did not mention whether
the aim of the search was to find the journalists sources, thus not excluding this
possibility. Finally, it allowed policemen to collect information not linked with the case.
The Court concluded that the search and seizure were not necessary in a democratic
society and violated the applicants freedom of expression

30 January 1998, Application No. 19392/92 (European Court of Human Rights)

Theme:

Miscellaneous; Other content restrictions

Sub-issues:

Right to associate; National security

Test:
Penalty:

Other

Decision:

Violation of freedom of association (Article

11 ECHR); not necessary to examine right
to freedom of expression (Article 10
ECHR)

Jurisdiction:

European Court of Human Rights: Turkey

one of the principal characteristics of a democracy is the possibility it offers of resolving

a country's problems through dialogue, without recourse to violence, even when they are
irksome. Democracy thrives on freedom of expression. ... There can be no justification
for hindering a political group solely because it seeks to debate in public the situation of
part of the State's population and to take part in the nation's political life in order to find,
according to democratic rules, solutions capable of satisfying everyone concerned. (para.
57)
To judge by its programme, this was the applicant party's aim.
It cannot be ruled out that a party's political programme can conceal its real aims. To
verify that it has not done so, the party's political programme must be compared to its
actions and the positions it defends. In the present case, the applicant party's programme
could not have been belied by any practical action, since it was dissolved before it had
had time to take any action. It was thus penalised for conduct relating solely to the
exercise of freedom of expression.

Case of Kimel v. Argentina.

Inter-American Court of Human Rights, May 2, 2008. Series C No. 177.
Theme:

Defamation

Sub-Issues:

Judicial authorities

Test:

Necessity of the penalty

Penalty:

Sentenced for the crime of libel to one-year imprisonment and payment

of 20,000 (twenty thousand Argentine pesos) as damages.

Decision:

Violation of the right to freedom of thought and expression (Art. 13),

violation of the right to a fair trial (Art. 8) and violation of the freedom
from ex post factolaws (Art. 9)

Jurisdiction:

Inter-American Court of Human Rights: Argentina

The IACtHR (The Court) admits the acknowledgment of international

responsibility made by the State and that aviolation of the right to
freedom of thought and expression (Art. 13) and a violation of the
right to a fair trial (Art. 8) have been committed to the detriment of
Eduardo Kimel.
The Court ordered the State to pay US$ 10000 (ten thousand United
States dollars) as compensation for pecuniary damage, US$ 20000
(twenty thousand United States dollars) as compensation for nonpecuniary damage and US$ 10,000.00 (ten thousand United States
dollars) as costs and expenses. Furthermore, the Court ordered the State
to set aside the criminal sentence and all the effects deriving therefrom
within the term of six months, to write the name of Mr. Kimel off all
public records wherein he has been entered as having a criminal record
in relation to the case, to order the State to publish the pertinent parts of
the Judgment, within the term of six months, to order the State to hold a
public act as acknowledgement of responsibility, within six months, to
order the State to bring within a reasonable time its domestic legislation
into conformity with the provisions of the Inter-American Convention
on Human Rights and to monitor full compliance with the Judgment.

Restrictions on the freedom of expression

Most expression is completely harmless and protected under the right to freedom of
expression from interference by the state.
However, seeking, receiving and imparting information or ideas includes expression
which few societies could tolerate, such as incitement to murder or the sale of
pornography to children. As a result, freedom of expression is not absolute and can be
limited when it conflicts with other rights.
International law declares freedom of expression to be the rule. Limitations are the
exception, permitted only to protect:

the rights or reputations of others

national security

public order

public health

morals.

Limitation is legitimate if it falls within the very narrow conditions defined in the threepart test in Article 19(3) of the ICCPR:
1. PROVIDED BY LAW...
The right to freedom of expression cannot be limited at the whim of a public official.
They must be applying a law or regulation that is formally recognized by those entrusted
with law making.
The law or regulation must meet standards of clarity and precision so that people can
foresee the consequences of their actions. Vaguely worded edicts, whose scope is unclear,
will not meet this standard and are therefore not legitimate. For example, vague
prohibitions on sowing discord in society or painting a false image of the State would
fail the test.

The rationale

It is only fair that people have a reasonable opportunity to know what is

prohibited, so that they can act accordingly

A situation where officials can make rules on a whim is undemocratic. Decisions

limiting human rights must be made by bodies representing the will of people

Vague laws will be abused. They often give officials discretionary powers that
leave too much room for arbitrary decision-making

Vague laws have a chilling effect and inhibit discussion on matters of public
concern. They create a situation of uncertainty about what is permitted, resulting in
people steering far clear of any controversial topic for fear that it may be illegal, even
if it is not.

2. LEGITIMATE AIM
There must be a legitimate aim to limit the right to freedom of expression. The list of
legitimate aims is not open-ended. They are provided for in Article 19(3) of the ICCPR:
respect for the rights and reputations of others, and protection of national security,
public order (ordre public), public health or morals. They are exclusive and cannot be
added to.
The rationale

Not all the motives underlying governments decisions to limit freedom of

expression are compatible with democratic government. For example, a desire to
shield a government from criticism can never justify limitations on free speech

The aim must be legitimate in purpose and effect. It is not enough for a provision
to have an incidental effect on one of the legitimate aims. If the provision was created
for another reason, it will not pass this part of the test.

3.NECESSITY
Any limitation of the right to freedom of expression must be truly necessary. Even if a
limitation is in accordance with a clear law and serves a legitimate aim, it will only pass
the test if it is truly necessary for the protection of that legitimate aim. If a limitation is
not needed, why impose it?

In the great majority of cases where international courts have ruled national laws to be
impermissible limitations on the right to freedom of expression, it was because they were
not deemed to be necessary.
The rationale

A government must be acting in response to a pressing social need, not merely out
of convenience. On a scale between useful and indispensable, necessary should
be close to indispensable

A government should always use a less intrusive measure if it exists and would
accomplish the same objective. For example, shutting down a newspaper for
defamation is excessive; a retraction (or perhaps a combination of a retraction and a
warning or a modest fine) would offer the victim of defamation adequate protection

The measure must impair free expression as little as possible. It should not restrict
in a broad or untargeted way, as that could interfere with legitimate expression. For
example, it is too broad to ban all discussion about a countrys armed forces in order
to protect national security

The impact of the measure must be proportionate and the harm that it causes to
free expression must not outweigh its benefits. For example, a limitation that provides
only partial protection to someones reputation but seriously undermines free
expression is disproportionate

A court must take into account all of the circumstances at that time before
deciding to limit freedom of expression. For example, it could be legitimate to limit

freedom of expression for national security reasons during a conflict but not during
peacetime

The European Convention on Human Rights (ECHR) narrows the third test by
requiring limitations to be necessary in a democratic society. This wording is
preferable as it clarifies that the purpose of the limitation must never be to shield
governments from either criticism or peaceful opposition.

WHAT IS A LIMITATION OR RESTRICTION?

International courts have generally judged that any action by a public body that has an
actual effect on peoples freedom of expression constitutes a restriction or limitation.

The nature of the action is irrelevant. It could be anything from a law to an

internal disciplinary measure

The nature of the public body is irrelevant. It could be legislative, executive or

judicial, or a publicly owned enterprise

The extent of the actions impact is irrelevant. Any discernible effect on the ability
of one or more people to express themselves freely is a restriction.

The ECHR again narrows the definition of a limitation, requiring the three-part test to
apply to any formalities, conditions, restrictions or penalties under Article 10(2).