FREEDOM OF SPEECH AND ITS RESTRICTIONS

Toby Mendel, Executive Director, Centre for Law and Democracy writes:

https://www.law-democracy.org/

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While there is no formal hierarchy among the protected rights, the European Court has repeatedly referred to the overriding importance of freedom of expression as a key underpinning of democracy, and in this way as essential for the protection of all of the rights and freedoms set out in the Convention:

Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment.

See: for example, Lingens v. Austria, 1986, Sener v. Turkey, 2000, Thoma v. Luxembourg, 2001, Maronek v. Slovakia, 2001, and Dichand and others v. Austria, 2002.

Article 10(1) of the European Convention guarantees the right to freedom of expression in the following terms:

Everyone has the right to freedom of expression. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The European Court first considered the right to freedom of expression in the case of De Becker v. Belgium, decided in 1962. In the 50 years since then, the Court has decided in the region of 1000 cases under Article 10, often along with other articles of the Convention.

The Court has consistently treated freedom of expression as a fundamental human right, emphasising its importance not only directly, but also as a core underpinning of democracy and other human rights. This is reflected in the quote above about freedom of expression being an essential foundation of a democratic society. It is also reflected in the following quotations, which the Court has often repeated (see, for example, Lingens v. Austria, 1986, § 42.):

More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.

Subject to paragraph 2 of Article 10, 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”

(Handyside v. the United Kingdom, 1976, § 49).

Legal Entities Protected

Article 10 protects not only individuals but also legal entities (Autronic AG v. Switzerland, 1990, § 47). Indeed, the very first case in which the Court found a breach of the right to freedom of expression, Sunday Times (No. 1) v. the United Kingdom, 1979, involved a newspaper publisher, Times Newspapers Limited, a corporate entity, as well as various individual journalists

Right to Receive Protected

The right to freedom of expression is also most commonly understood as applying to the right to impart information and ideas, i.e. to express oneself. This is certainly a very central aspect of the right. But the guarantee under Article 10 also includes the right to receive information and ideas.

For example, in Autronic AG v. Switzerland, 1990, the issue was whether the freedom of expression rights of the applicant company had been interfered with when the State regulator had refused to authorise it to receive a broadcast transmission from abroad. The Court easily found an interference with freedom of expression through the limit on the applicant’s ability to receive information and ideas.

Similarly, in Khurshid Mustafa and Tarzibachi v. Sweden, 2008, the Court found an interference with the right to freedom of expression based on the refusal of a landlord, upheld by the Swedish courts, to allow a tenant to install a satellite dish outside of their apartment, again on the basis that this obstructed their right to receive information.

PERMISSIBLE RESTRICTIONS

Article 10 does permit limited restrictions on freedom of expression to protect certain overriding interests. Article 10(2) of the Convention sets out the parameters for legitimate restrictions:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, 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.

Article 10(2) authorises States to impose restrictions in accordance with its provisions, but it does not require them to. States therefore have a measure of discretion as to whether and to what extent they impose restrictions to protect the various interests listed in Article 10(2). Although there is a measure of commonality, in practice, among European States in this area, there are also significant differences, especially in areas like the protection of morals. States also enjoy a measure of prosecutorial discretion in deciding whether and when to apply national legal restrictions on freedom of expression. In many countries, for example, the authorities tend to ignore expressions of hate speech, on the basis that prosecuting those responsible would actually do more harm than good, for example by providing a wider platform for the dissemination of racist speech.

Article 10(2) establishes a three-part test for assessing restrictions on freedom of expression, as follows:

1. The restriction must be prescribed by law.

2. The restriction must protect one of the interests listed in Article 10(2).

3. The restriction must be “necessary in a democratic society” to protect that interest.

Prescribed By Law

The prescribed by law criterion has implications beyond simply requiring that a restriction be set out in law. The law must also meet certain qualitative standards. These have been developed through the jurisprudence of the Court and were encapsulated well in the recent Grand Chamber decision in Centro Europa 7 S.R.L. and Di Stefano v. Italy, 2012, as follows:

141. One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable citizens to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice

142. The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed.

143. In particular, a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment.

The need to constrain the discretion of officials in the application of the law, hinted at in the above quotation from Centro Europa 7 S.R.L. and Di Stefano v. Italy, 2012, is based on fairly obvious considerations. In particular, if officials have too much discretion in applying the law, the rules will not be foreseeable. Furthermore, providing them with undue discretion essentially grants officials a quasi-legislative competence, which is not appropriate when restricting freedom of expression. In Glas Nadezhda Eood and Elenkov v. Bulgaria, 2007, the European Court elaborated in some detail on this aspect of the prescribed by law part of the test:

Domestic law must also afford a measure of legal protection against arbitrary interferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise. It must furthermore provide adequate and effective safeguards against abuse, which may in certain cases include procedures for effective scrutiny by the courts.

Legitimate Aims

The second part of the test for restrictions on freedom of expression is that the restriction must pursue a legitimate aim or interest. It is clear, both from the wording of Article 10(2) and the jurisprudence of the Court, that the list of interests found in Article 10(2) is exclusive, in the sense that no others are considered appropriate.

The specific interests listed in Article 10(2) can be broken down as follows:national security and territorial integrity;public safety and the prevention of disorder or crime;the protection of health;the protection of morals;the protection of the reputation or rights of others;preventing the disclosure of information received in confidence; andmaintaining the authority and impartiality of the judiciary.

The Court has made frequent statements about the need to interpret these rules narrowly, in the sense of permitting only clearly justifiable restrictions on freedom of expression, often stating:

Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. (Observer and Guardian v. the United Kingdom, 1991, § 59)

Pursuant to the three-part test, the State must show that any restriction on freedom of expression meets all three parts of the test. Failure on one part invalidates the restriction.

On many occasions, the Court has skipped over certain parts of the test, and only focused on the part which a given restriction most clearly fails to meet. In other cases, the Court, having found a failure to meet one part of the test, declines to consider the following parts, on the grounds that this is unnecessary

Necessary in a Democratic Society

In practice, the vast majority of cases decided by the European Court are decided on the basis of the third part of the test for restrictions, namely through a consideration of whether, taking into account all of the circumstances, the restriction is necessary in a democratic society.

The Court now includes some version of the following principles governing its assessment of necessity, which derive from its very early jurisprudence, in most of its judgments:

The Court has noted that, whilst the adjective “necessary”, within the meaning of Article 10 (2) (art. 10-2), is not synonymous with “indispensable”, neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable” or “desirable” and that it implies the existence of a “pressing social need”. (Sunday Times (No. 1) v. the United Kingdom, 1979, § 59)

In terms of assessing whether the measures were necessary to address a ‘pressing social need’, the Court has frequently stated:

In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were ‘relevant and sufficient’ and whether the measure taken was ‘proportionate to the legitimate aims pursued’.... In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10. [references omitted] (Cumpǎnǎ and Mazǎre v. Romania, 2004, § 90)

Margin of Appreciation

Closely related to the issue of necessity is the doctrine of a margin of appreciation developed by the European Court. As noted earlier, this doctrine allocates to States a certain degree of discretion in determining whether or not a pressing social need exists and, if so, the measures they take to address it. The Court developed this doctrine in its very early case-law. Thus, in Handyside v. the United Kingdom, 1976, which dealt with the moral issue of charges of obscenity, the Court stated:

Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force. [references omitted]119

The challenge for the Court has been to strike the right balance between its role in ensuring that States meet their Article 10 obligations, while taking local considerations into account:

Nevertheless, Article 10 para. 2 (art. 10-2) does not give the Contracting States an unlimited power of appreciation. The Court, which, with the Commission, is responsible for ensuring the observance of those States’ engagements (Article 19) (art. 19), is empowered to give the final ruling on whether a “restriction” or “penalty” is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with a European supervision. (Handyside v. the United Kingdom, 1976, § 49)

And:

This does not mean that the Court’s supervision is limited to ascertaining whether a respondent State exercised its discretion reasonably, carefully and in good faith. Even a Contracting State so acting remains subject to the Court’s control as regards the compatibility of its conduct with the engagements it has undertaken under the Convention. (Sunday Times (No. 1) v. the United Kingdom, 1979, § 59)

Restrictions on freedom of speech are strongly policed by the European Courts. This is important in an era where State censorship and speech monitoring have reached unprecedented levels.