JUSTICE commentary

Freedom of expression is one of the best known and most fundamental of human rights. A number of different explanations have been offered as to why freedom of expression is so important, and these accounts often differ as to the kinds of expression which should be protected. Nonetheless, there is broad consensus that the extent to which freedom of expression is protected is perhaps the most basic indicator of a liberal democratic society.

 

This is because freedom of expression is considered, among other things, as an essential element of democracy itself – in order for members of a democracy to deliberate properly about what the law should be requires free and open exchange of different ideas and opinions. Similarly, free expression is important not only in its own right, but also in relation to the political aspects of other rights guaranteed by the Charter such as the freedoms of assembly, thought, conscience and religion. The freedom to express one’s views does not only apply to ideas that are widely-shared or politely-worded, but extends to protect viewpoints that may be thought offensive or false and whose form or content may ‘offend, shock or disturb’ others.[1]  Without such broad protection for free expression, it would be difficult to sustain a democratic society committed to the values of pluralism, tolerance and broadmindedness.

 

The right to freedom of expression covers not just the voicing of political ideas but also many other forms of expression, including artistic expression.[2] Indeed, the right to receive and impart information and ideas also affords the opportunity to take part in the public exchange of cultural, political, and social information and ideas of all kinds. Accordingly, it has been held that those who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions protected by freedom of expression. Similarly, many people now consider the internet itself to be one of the best illustrations of the ideal of the free and open exchange of ideas and information.

A precondition for expressing an opinion is actually having an opinion to express in the first place. Although it might be thought that the freedom merely to have an opinion is not something covered by the right to freedom of expression, the right to hold opinions has been protected on this basis. This is because part of the freedom to hold an opinion is the freedom not to express it, which includes being free from being forced to reveal what one’s opinions or beliefs actually are. This is a good example of how free expression is intimately linked with the protection of other rights such as freedom of thought, conscience and belief.

In many EU countries, the state and other public authorities often employ very large numbers of people. In such cases, the question often arises as to how far those employees are free to express their own personal views. The European Court of Justice has held that public employees enjoy the right of freedom of expression, even (with certain limitations) in areas falling within the scope of the activities of the government. This includes the freedom to express opinions that dissent from or conflict with those held by the employing body.[3] Nor – in general - can public employees be prevented from belonging to a political party or taking part in political activities.[4]

 

Generally speaking, public officials retain the right to talk in a nonofficial capacity about election programmes, promote and nominate candidates, organise election campaign meetings, vote in and stand for elections, participate in referenda, join trade unions, associations and other organisations, participate in peaceful assemblies, make statements to the press, participate in radio or television programmes or publish works on politics.[5] However, it is recognised that civil servants can be subject to certain restrictions to ensure, for instance, that members of the public continue to have faith that public services are administered in an independent and impartial manner.[6] Similarly, it has been held that Governments are thus entitled to review, screen any official publications produced by them.[7]

A fundamental aspect of the right to free expression is not only to express ideas but being free to receive them as well. Accordingly, unimpeded access to information is an important element of free expression generally.

 

In particular, freedom to receive information prohibits a government from restricting a person from receiving information that others may be willing to impart to him. However, that freedom does not mean that the State itself should collect and disseminate information that might be of interest to individuals. For example, residents living near an agricultural chemical factory charged the government with failing to inform them of the hazards of the industrial activity concerned, the safety measures taken, the plans made for emergencies, and the procedure to be followed in the event of an accident.[8]  It was decided that while the government is prohibited from restricting the flow of information to citizens, it was not required to freely distribute the information concerning the chemical factory. However, in cases where the risks to the public were more direct, it may be that the government could be under a duty to do so.

 

Similarly, there may be other situations in which it may sometimes be justified for the government to limit access to information. For example, if someone wants access to confidential information in government files because he believes they contain the basis for why he had been denied a job and wants to challenge the contents of the information, this will likely fall outside of the realm of freedom to receive information.[9] At the same time, however, this is likely to depend on why the information is confidential in the first place. For instance, it may be that the information relates to national security or would require the state to disclose personal medical details concerning a third party. However, it would not be open to the state to refuse to disclose information merely because it would be politically embarrassing.

One of the key principles of free expression is that the state may not stand between a speaker and his audience.[10] This is because each has the right to engage the other. However, the right to impart information does not also imply a right of access to the means of imparting information. So the mere fact that someone feels they have something to say does not mean that anyone else is under an obligation to listen, or to provide that person with the means (e.g. newspaper space, television airtime) of reaching a larger audience. At the same time, though, a situation where one company has a monopoly over a particular kind of expression (e.g. television) may mean that the state is obliged to regulate that industry in order to ensure that others have access to the same medium (see freedom of the press below).

 

Note that the freedom to impart information is sometimes protected even where the information concerns activity that may be illegal in the state in question. For example, an association of student groups engaged in the distribution of information about clinics offering legal abortions outside of their home country, Ireland, where abortion is outlawed.[11]  This was considered to be a manifestation of their right to freedom of expression. However, the state may be entitled to limit the flow of information in certain, very exceptional cases, e.g. restricting the publication of information concerning the construction of nuclear weapons.

The press fulfils an essential function in a democratic society because it acts as a “public watchdog” in imparting information of serious public concern.[12] Indeed, they have a duty to impart information and ideas on all matters of public interest, subject only to a need to respect certain other rights (e.g. privacy).[13] For example, a British newspaper had published information related to pending civil proceedings in a settlement between a drug company that had manufactured a drug that caused birth defects and the victim families.[14]  The company argued that the information should be kept private, but the newspaper’s right to freedom of expression was protected and it was allowed to continue reporting on the case.  It was held that the case was a matter or public concern because the public and the victims had a right to know about the legal difficulties involved with the settlement offers. 

 

Freedom of the press was at issue in another case involving a newspaper that was prevented from publishing excerpts from a controversial book that had been released in other countries, but not in the UK.[15]  It was found that preliminary restrictions placed on media outlets present grave risks to freedom of expression and therefore require careful oversight.  In this case, the information was held to be a “perishable good,” which would be deprived of any interest if publication were delayed at all.[16]

 

One aspect of press freedom is the right of a journalist to refuse to disclose his sources of information especially in civil proceedings.[17]  If someone leaks confidential information about the financial circumstances of a corporation to a journalist, his identity will be protected.[18] In the balance between protecting confidential information from being leaked and promoting freedom of the press, it has been held that society has a greater interest in defending freedom of expression.

 

Despite the importance given to this basic value, freedom of the press has sometimes been held to be subject to certain restrictions. Besides limiting defamatory speech (see restrictions below), the European Court of Human Rights has upheld certain limits in the context of prohibiting racism or incitement. For instance, a radio journalist was charged with aiding and abetting the dissemination of racist statements and sentenced to a fine after he interviewed a group of racist students on his radio broadcast.[19] While it was acknowledged that news reporting based on interviews one of the most important means whereby the press is able to play its vital role as public watchdog, it was held that the state was entitled to restrict the broadcast of the actual racist comments because of the importance attached to combating racial discrimination.[20] Similarly, the conviction of a Turkish journalist who had interviewed the leader of an terrorist organization was upheld because preventing incitement to violence was a legitimate ground for limiting the freedom of the press in this case.[21]

 

This protection against incitement works both ways, though, as the state may have an obligation to protect the media in order to promote freedom of expression through the press.  When the staff of a newspaper in Turkey came under attack for publishing damaging articles about the government, the concerns of the paper were brought to the attention of the authorities.[22]  However, no measures were taken to investigate the situation and no protective measures were taken.  It was found that the failure of the state to protect the newspaper from acts of violence constituted a violation of freedom of expression.

The right to freedom of expression is not absolute and is subject to a number of limits. These limits are mostly for the sake of protecting some other fundamental right. However, under the EU Charter, free expression can also be subject to a degree of interference where the interference is the necessary and unintended consequence of some unrelated exercise of state authority, such as the deportation of a non-citizen. Similarly, as noted above, the state also has the power to limit access to information if it protects the public interest.  An example of this limitation would be maintaining the independence and confidentiality of court proceedings.[23]

The European Court of Human Rights has identified a number of principles concerning interference by the state with the right to free expression. Specifically, a state may interfere with one’s right to freedom of expression if the interference is:

Each of these phrases has a specific legal meaning that will be discussed below. In addition, each individual Member State is given discretion to put conditions or restrictions on freedom of expression, depending on their respective laws.[24]  However, all exceptions to the right to freedom of expression must be subject to strict limits and the need for restrictions must be convincingly established.[25]  

A limitation on freedom of expression is “prescribed by law” if it is imposed by the state legislature as a result of the democratic process. So, for instance, a limit can be struck down where it is shown to be the result of a mere administrative policy rather than a proper law. One aspect of the requirement that limits must be “prescribed by law” is the idea that its effects must be foreseeable to a certain degree. This is because a vague and undefined interference lacks the certainty of law – the rule in question must be clear and precise enough to enable a citizen to regulate his conduct accordingly.  Thus, the people must be able to foresee the consequences of their actions. 

 

For example, if a law would result in the blocking of a periodical from being published, the publishers must be aware that it exists.[26]   When a Polish publisher requested state registration for the titles of two periodicals he wished to publish, he was denied because the title of one of the publications would be misleading to potential readers while the title of another would be harmful to international relations.[27]  Even though Polish law required the titles of periodicals to be registered by the judiciary prior to their publication, the law did not make it clear that the judiciary would review the titles for their truth.  The law was held to be insufficiently precise to enable the applicant to regulate his conduct, and therefore the interference with the publisher’s freedom of expression rights was not ‘prescribed by law’.[28]

 

The terms included in such laws must also be precise.  For example, a law prohibiting members of the armed forces, the police and security services from joining any political party and from engaging in “any political activity” was found to be “vague and sweeping” because the term “any political activity” was not defined.[29]  As such, it was deemed a restriction on the security personnel’s freedom of expression that was not prescribed by law.

 

There are some areas of the law that are intentionally vague, however, so that a variety of factual scenarios may be taken into account.  For example, libel cases depend heavily on the seriousness of the offence.  An author who had published an article accusing a warden of war crimes was subsequently charged with libel.  Because of the gravity of the accusation, he was fined £1,500,000 and prevented from future publishing.  The author claimed that the award and the injunction violated his right to freedom of expression, but it was held that because the law allowed for substantial discretion in awarding damages for libel, the verdict was “prescribed by law.”

 

 

            The prevention of disorder is a legitimate aim that may be pursued by the state.  The term “public order” may apply to the public as a whole or to specific groups.  For example, preventing disorder within the military is a legitimate aim because disorder in that group can have repercussions on order in society as a whole.[30]  As a result, the military can put restrictions on materials published by its officers and disseminated among the ranks.  In addition, maintaining the authority of the judiciary is seen as a legitimate aim that can be pursued at the expense of one’s freedom of expression.  One case involved a reporter who criticized a decision made by judges on the High Court of Greenland.  The judges imposed a fine on the reporter because they believed his comments might damage their reputation in the eyes of public and hence generally impair confidence in the legal system.  The fine, even though it was considered a restriction on his right to freedom of expression, was justified because it pursued a legitimate aim under the law.

 

            Another “legitimate aim” that has been recognized is the protection of the reputation or rights of others.   

Whether a state interference with the right to freedom of expression will be deemed “necessary” will depend on whether there is a pressing social need for the state action.[31]  For example, the protection of human health constitutes a pressing social need.  

 

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