The Individual Legal Framework of Human Rights: Individual Human Rights Rights and Democratization

PBL 5020 M.A. Human Rights and Democratization Erika Borg

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PBL 5020 The Individual Legal Framework of Human

Rights: Individual Human Rights

Deadline: Tuesday 10th June 2014

Word Count: 3,000 words

The exercise of freedom of expression carries special

duties and responsibilities and may therefore be subject

to certain restrictions. Discuss.

Erika Borg

M.A. Human Rights and Democratization


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Table of Contents

PBL 5020 Assignment Title....................................................................................................... 1

1. Introduction ............................................................................................................................ 3

2. Freedom of Expression: ......................................................................................................... 3

2.1 Analysing the right ........................................................................................................... 3

International Covenant on Civil and Political Rights – Article 19 ..................................... 4

European Convention on Human Rights - Article 10......................................................... 4

2.2. The right of freedom of expression includes:.................................................................. 5

3. Duties and Responsibilities .................................................................................................... 6

4. Restrictions ............................................................................................................................ 7

4.1 Limitations to the freedom of expression include: ....................................................... 7

4.2 Restrictions or interferences: ..................................................................................... 10

5. The Court’s Opinion ............................................................................................................ 10

6. Conclusion ........................................................................................................................... 11

7. Bibliography ........................................................................................................................ 12


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1. Introduction

Freedom of expression is considered to be one of the fundamental freedoms required for a true

democratic society, however, it is not an absolute right. I will explore the restrictions posed on

this right and their justification, including the court’s opinion.

For this assignment I will be focusing on freedom of expression, rather than the narrower in-

terpretation of freedom of speech. As speech would include only word which are spoken, whilst

expression also includes the arts and other forms of media.

2. Freedom of Expression:

2.1 Analysing the right

“Freedom of expression is, the Court has underlined, one of the key pillars

on which an effectively functioning democracy rests.” 1

The right to freedom of expression is found in various conventions such as:

Article 10 – European Convention for the Protection of Human Rights and Funda-

mental Freedoms2;

Article 19 – International Covenant on Civil and Political Rights3;

Article 19 – Universal Declaration on Human Rights4;

Article 9 – African Charter on Human and Peoples’ Rights5;

Article 13 - American Convention on Human Rights6;

Article 13 – Convention on the Rights of the Child7.

Freedom of expression is a basic communicative right and fundamental freedom. It is interre-

lated to the other freedoms such as that of assembly and association and the right to the freedom

of thought and religion.

1

(Reid, 2011)

2

Council of Europe, Adopted 4 November 1950, entered into force 3 September 1953.

3

United Nations, Adopted 1966, entered into force 23 March 1976

4

United Nations, Adopted 10 December1948.

5

Organisation of African Unity, Adopted 26

June, 1981, entered into force 21 October 1978.

6

Organisation of American States, Adopted 26 June 1981, entered into force 21 October 1986.

7

United Nations, Adopted 20 November 1989, entered into force 2 September 1990


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According to T. Emerson, the purpose of freedom of expression is to: allow for personal self-

fulfilment; promoting the discovery of truth and advancement of knowledge; facilitating the

participation of all members of society in public decision making issues; and encourage devel-

opment and social change through discussion rather than violence. 8

International Covenant on Civil and Political Rights – Article 19 “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 sub-

ject 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.”9

European Convention on Human Rights - Article 10 “1. Everyone has the right to freedom of expression. This right shall include

freedom to hold opinions and to receive and impart information and ideas

without interference by public authority and regardless of frontiers. This

Article shall not prevent States from requiring the licensing of broadcast-

ing, television or cinema enterprises.”

“2. The exercise of these freedoms, since it carries with it duties and re-

sponsibilities, 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 pre-

venting the disclosure of information received in confidence, or for main-

taining the authority and impartiality of the judiciary.”10

8

Thomas Emerson, The System of Freedom of Expression, 1970

9

Ibid. 3

10

Ibid. 2


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2.2. The right of freedom of expression includes:

“Everyone has the right to freedom of expression”

Freedom of expression is applicable to everyone without discrimination or preference given to

certain groups.

“freedom to hold opinions”

The right to hold opinions is an absolute one but this does not necessarily include the freedom

of expressing one’s opinion. The European Court allows for an opinion however since it is not

based on proof and facts it mustn't be excessive. One also has the possibility not to express

their opinion. This reinforces the freedom of thought and conscious as opinions are a conse-

quence of knowledge, access to information, thought and conscious.

“freedom to … seek, receive and impart information”

The freedom to seek information implies that the prohibition of the distribution of information

or expression would mean that the freedom to seek information will also be violated. Freedom

to seek information is not added in the European Convention. 11

Exchange of information which includes the freedom to disseminate information privately,

publicly, through media, etcetera but also and probably most importantly to have access to

information. Information needs to be made available, either through the internet, television,

radio, newspapers, academics or by public authorities.

“freedom to ... receive and impart … ideas”

One is free to exchange ideas both publicly and in a private sphere. Ideas may be based on facts

or abstract in nature and there are many different ways one can exchange ideas. Opinions and

ideas are formed through the availability and access to other people’s ideas and information.

This also includes the protection of the rights of the speaker and listener. 12

11

(Fenwick, 2002)

12

(Mendel, 2010)


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“without interference from public authority”

The interference would be justifiable only if there is a “pressing social need”, if it is “propor-

tionate to the legitimate aim pursued” and the “reasons given by the national authorities…are

relevant and sufficient”.13

“requiring the licensing”

Even though the exchange of information should be without interference, there is still a re-

quirement of licensing of the radio, television or cinema.

“regardless of frontiers”

The above freedoms shall be enjoyed and permitted not only within national borders but also

internationally.

“orally, in writing or in print, in the form of art, or through any other media

of his choice”

One can choose the most appropriate method of communication available such as art, public

protests, words, etcetera to reach the initial aim of that expression.

3. Duties and Responsibilities

Article 10(2) points out that this freedom comes with duties and responsibilities: “The exercise

of these freedoms, since it carries with it duties and responsibilities”14 The mention of duties

and responsibilities is unique to article 10, as it is not mentioned in any of the other rights and

freedoms listed in the European Convention of Human Rights.

The State is responsible to ensure that freedom of expression is protected and is given im-

portance within domestic laws, it must ensure that there isn’t any unnecessary interference and

is allowed beyond national borders. There has been a move from the idea that the role of the

state was non-interference or protecting the media, but now it must also take a proactive role

to ensure the availability of diverse forms of expression, no longer allowing monopolies in the

media. The UN Special Rapporteur on Freedom of Expression points out that we have a right

13

(Sammut, Cuignet, & Borg, 2012)

14

Ibid no.7


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to diversity and pluralism of expression to be able to form our own opinions.15 The State also

enjoys this freedom, particularly when communicating its work and during times of elections

and therefore is also subject to following the laws.

The individual is responsible for their own form of expression and should be in line with the

law. The individual can be interpreted as any other person within our society – whether a Mal-

tese citizen or not, or a person within the media such as journalists. There are certain roles such

as those of Judges or soldiers which require further restrictions on their freedom of expression

due to their job mandate.

4. Restrictions

4.1 Limitations to the freedom of expression include:

Any restriction to this article is a limitation to the enjoyment of the freedom of expression.

Nevertheless, restrictions are still listed down but they must be:

“prescribed by law”

Restrictions must be clearly listed in the national law and supported as to why they should be

seen as justifiable. It must be found within the national laws of the country and people must

know that a regulation or law exists. Freedom of expression is listed in the Maltese Constitution

in Chapter IV, article 41.

The law must be predictable, clear and precise, they cannot be vague or easily misinterpreted.

As was seen for the case of Hashman and Harrup, freedom of expression was restricted on the

idea that the expression wasn’t of 'good behaviour', however the European court noted that this

is not clear enough.16 Not only should the law be present, but it must be substantive, to ensure

that it protects fundamental human rights by also offering protection against arbitrary interfer-

ence. The power given to the broadcasting authorities should also be limited and monitored.

Their role and mandate should be clearly defined. 17

“necessary in a democratic society”

The restrictions considered necessary are usually similar to the restrictions posed on the other

freedoms. What is usually considered necessary is tested against a 'pressing need' of society.

15

Talk by Frank La Rue, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression at the International Workshop 'Situation of Freedom of Expression in South Korea and the Use of UN Special Procedures', 2009. 16

Hashman and Harrup v. United Kingdom, No. 225594/94

17

Re Ontario Film and Video Appreciation Society v. Ontario Board of Censors, Ontario High

Court


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The restrictions listed down in Article 10 of the ECHR are the following: National security;

Territorial integrity; Public safety; Prevention of disorder or crime; Protection of health or mor-

als; Protection of the reputation or rights of others; Preventing the disclosure of information

received in confidence; and Maintaining authority and impartiality of the judiciary.

Whilst for the Constitution of Malta restrictions are justified in the case of: public safety; public

order; public morality or decency; public health; protecting the rights and freedoms of others,

their reputation and private lives especially when in involved in legal proceedings, ensuring

confidentiality; protecting the independence of a court; protecting Parliamentary privileges

and; regulation of the means of communication including public exhibitions.18

Besides the above two reasons for restrictions, Mendel adds the final component to the three-

part test for restrictions. 19 A restriction may also be justified if it is for a legitimate aim such

as the ensuring an individual a fair trial and therefore not allowing for the publication of certain

information. This is considered as the second step of the three part test. Restrictions on infor-

mation can also be done to protect minors. However, in general this part of the test is not re-

ferred to as much by the courts as it can be difficult to determine the legitimate aim. For exam-

ple when it comes to public morals, not all may agree on what is considered to offend and be

obscene.

If a restriction is permitted based on the above three-part test, it must also undergo another test

and the restriction must be:

i. Proportionate

The sanction or restriction must be proportionate to the form of expression and the person

expressing it. Most criminal charges or even imprisonment for freedom of expression is seen

to be disproportionate.

ii. Absolutely necessary

It must convince that the restriction is absolutely necessary and there is no way of modifying

or adapting the expression to still allow it. The Court will attempt to minimize restrictions as

much as possible, to ensure “the great importance of not discouraging members of the public,

for fear of criminal or other sanctions from voicing their opinions on issues of public con-

cern”.20

18

(Constitution of Malta, 1964)

19

(Mendel, 2010)

20

Bradford v Denmark, 1989


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To evaluate the above three points, restrictions need to be made considering various factors

such as:

a) The method of communication being used

Certain methods of communication require more regulations to ensure its effectiveness.

b) The form of expression

Censorship on certain forms of expression, such as art or books is highly frowned upon. Espe-

cially for art, it cannot be modified to satisfy everyone’s tastes.

c) The aim of the expression

If the aim of the expression is to either express oneself without the intention of harming others,

to give facts or related stories in an unbiased manner, entertainment, provide useful infor-

mation, encourage public debate and so on, then the expression should be allowed. If the ex-

pression is used to instigate hate and violence, offend and discriminate then this will not lead

to progress of society and can be subject to a ban.

This was discussed in the Jersild v Denmark case where a journalist was accused to inciting

racial hatred, but it was found from the court that he was reporting other people's thought which

reflected facts.21

d) The audience

Broadcasting regulations include assessing the time and therefore the expected audience. Be-

sides this also, a private function may allow for more liberal expressions rather than that which

would be allowed during public meetings.

e) The communicator

Depending on the communicator, certain restrictions may apply. For example, the court be-

lieves the State must be more lenient with the press as “freedom of the press affords the public

one of the best means of discovering and forming an opinion of the ideas and attitude of polit-

ical leaders”.22

21

Jersild v. Denmark, 1994

22

Freedom of Expression in Europe: Case-Law Concerning Article 10 of the European Conven-

tion on Human Rights, (2007), Council of Europe Publishers, Strasbourg


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1.2 Restrictions or interferences:

The article states that this right should be enjoyed without interference, however some re-

strictions are permitted. It is therefore important to distinguish between an interference and a

restriction.

An interference can only be made by public authorities. As for private parties, they aren’t usu-

ally subject to the same interferences. It is however, sometimes difficult to clearly identify what

is considered to be public and not. From the Casado Coca v. Spain23 case, it was found that if

a private company is working in an area which serves public interest then it is also subject to

interferences.

5. The Court’s Opinion

The Court usually refrains from actually assessing the message being expressed but focuses on

whether the restriction was necessary and “proportionate to the legitimate aim pursued”.24

The Court, mainly analyses not the content of the expression but the proportionality of the

sanction given to it. For example, it allows for the statement of hatred comments if the purpose

is not propaganda, but reporting of reality25. It does not however, justify the offensive expres-

sion against particular groups with the sole aim of offending rather than initiating public de-

bate.26

It also distinguishes based on the type of expression. For example artistic or political expression

should be given more protection than commercial expression.

It is always considered a difficult task to find to which extent is the freedom of expression

allowed until it might be subject to the governments infringement and prohibited by law. An

example of this is when we are dealing with hate speech. Many argue that restricting certain

forms of expression including speech will act as censorship and against the freedom itself. It

is also understood that freedom of expression involves shocking or unpopular statements which

according to the court also need protection as: “such are the demands of pluralism, tolerance

and broad mindedness without which there is no democratic society”27

23

Casado Coca v. Spain, 1994

24

(Reid, 2011)

25

ibid no. 19

26

Otto-Preminger Institut v. Austria, 1994

27

European Court of Human Rights, Handyside v. the United Kingdom, 1976


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OSCE28, joint declaration in 2001 on ‘Challenges to freedom of expression in the new century’

pointed out a limitation to hate speech laws:

Statements of facts shouldn’t be penalised;

Penalisation of hate speech is only justified if the aim is to incite discrimination, hos-

tility or violence;

It should be assumed that journalists act in good faith and use this when reporting sen-

sitive issues such as racism;

Prior censorship should be prohibited;

Sanctions by courts should be proportionate to the breach. 29

The Human Rights Committee when discussing hate speech and whether article 20.2 is a vio-

lation to article 19 of the ICCPR, it emphasizes that the practice of such a freedom comes with

duties and responsibilities and therefore is not a violation.

6. Conclusion

Being one of the fundamental freedoms and also considered a crucial aspect to what would

define a healthy democratic society, one cannot fail to give this freedom too much importance.

As a freedom it should occur with as least as possible interferences. The restrictions and sanc-

tions which might be justifiable in certain cases but must be explained clearly so as not to deter

people from expressing themselves in the future and therefore limiting the freedom.

One must also note that whenever a restriction is made on the freedom of expression, automat-

ically you are limiting the ability of another to enjoy the same right, as information or that

particular form of expression will no longer be available.

As important it is for the possibility of free flowing information and freedom of expression,

now-a-days this has become extremely easy through the internet where everyone is able to

express themselves to a much wider audience. This has also meant that in most cases the State

no longer has authority on what is being expressed leading a somewhat liberal but also danger-

ous new trend. Many have been using the internet to express ideas which they wouldn't nor-

mally express through the more traditional media or in person. This has reduced the responsi-

bilities which come with this freedom and in many cases it has caused harm or incited hatred

on certain groups of people.

“If we don't believe in freedom of expression for people we despise, we don't believe

in it at all” - Noam Chomsky

28

Organisation for Security and Co-operation in Europe – www.osce.org

29

Joint Declaration by OSCE, UN and OAS, 2001.


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As mentioned, the most difficult task would be to identify if a form of expression should be

allowed or not when it might not promote democratic principles. In my opinion, expression in

the form of art and literature, should be as liberal as possible with restrictions being posed

solely on the viewing times and place. Whilst since television, radio and newspapers are reach-

ing a wider mass audience it must ensure that the information given out is at least factual or

non-discriminating. As for criticism of the government, the democratic system and so on, I

believe this should be allowed as long as it doesn't incite violence but is being expressed with

the aim of initiating a debating or simply expressing one's opinion.

As it is seen with the other freedoms, most countries are at different levels of protection and

promotion of this freedom. There is no universal approach and in many cases we see that the

government still has strict control on what information is entering and leavings it's State.

7. Bibliography

(1964). Constitution of Malta. Malta.

Council of Europe. (1950). Convention for the Protection of Human Rights and Fun-

damental Freedoms. Strasbourg: Council of Europe.

Council of Europe. (2013). No Hate Speech Movement: Youth Campaign for Human

Rights Online. Council of Europe.

Fenwick, H. (2002). Civil Liberties and Human Rights. London: Cavendish Publishing

Limited.

Reid, K. (2011). A Practioner's Guide to the European Convention on Human Rights.

London: Sweet & Maxwell.

Sammut, M. A., Cuignet, P., & Borg, D. A. (2012). Malta at the European Court of

Human Rights 1987 -2012. Birkirkara: Kotba-Argo Ltd.

United Nations. (1966). International Covenant on Civil and Political Rights. New York:

United Nations General Assembly.

Documents

The Individual Legal Framework of Human Rights: Individual Human Rights Rights and Democratization