Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Human rights - There is no speech nor language, where their voice is not heard: Freedom of
expression
Pavel Molek

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
History
n„I disapprove of what you say, but I will defend to the death your right to say it.“
n„Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.“
nWhy it was number one?

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Instruments
nUDHR Article 19 (!): „Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and impart information
and ideas through any media and regardless of frontiers. “
n

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Instruments:
nICCPR:
n„Article 19
n1. Everyone shall have the right to hold opinions without interference.
n2. 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.
n3. 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:
n(a) For respect of the rights or reputations of others;
n(b) For the protection of national security or of public order (ordre public), or of public health
or morals.
n
nArticle 20
n1. Any propaganda for war shall be prohibited by law.
n2. Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.“

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Instruments:
nECHR:
n„Article 10
nFreedom of expression
n1. 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
broadcasting, television or cinema enterprises. - outfashioned
n2. 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.“

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Instruments:
nEU Charter:
n„Article 11
nFreedom of expression and information
n1. 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.
n2. The freedom and pluralism of the media shall be respected.“
nIs there any difference between EU and ECHR?

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Structure
nFreedom to hold opinions (a contrario newspeak and crimethink)
nto receive information and ideas (Open Door Counselling v. Ireland 1992 or ECJ - Grogan)
nto impart information and ideas
n+ to request information (Guerra and others v. Italy 1992 in scope of Art. 8 to get information
about chemical factory)?

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Forms of expression
nWhat forms can you think about?
nForms in ECHR
nWritten and spoken word (freedom of speech), particularly newspaper (tradition) Observer and
Guardian v. U.K. (1991)
nTV programmes: Hodgson v. U.K. (1987)
nRadio broadcasting: Autronic AG v. Switzerland (1990)
nMovies: Wingrove v. U.K. (1996)
nPaintings: Müller v. Switzerland (1988)
nClothes: Stevens v. U.K. (1986)
nNonverbal acts of protest: Steel v. U.K. (1998)
nSymbols: Chorherr v Austria (1993)
n
large_peace_symbol

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Forms of expression
nVajnai v. Hungary (2006) – what was it about? ECHR as the lowest common denominator? Why he did
not succeeded at ECJ?
katl komanc

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Content of expression
nWhich one is on the top? Artistic (Wingrowe, Otto-Preminger-Institute v. Austria 1994) v.
commercial (Markt Intern and Beermann v. Germany 1990) v. political (Lingens v. Austria 1986 –
central concept of democratic society; Castells v. Spain 1992)…?

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
n2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties
nas are prescribed by law
nand are necessary in a democratic society,
nin the interests
nof national security, territorial integrity or public safety,
nfor the prevention of disorder or crime,
nfor the protection of health or morals,
nfor the protection of the reputation or rights of others,
nfor preventing the disclosure of information received in confidence,
nor for maintaining the authority and impartiality of the judiciary.

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
nPrescribed by law:
nSilver v. U.K. 1983 – prisoners;
nSunday Times v. U.K. 1979 – Thalidomin, only House of Lords case law
n

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
n"necessary in a democratic society“
nExplicitelly or implicitelly including proportionality test:
nIs there a legitimate purpose (pressing social need like in Sunday Times v. U.K. 1979 -
Thalidomin)?
nNecessity (is there alternative measure less intrusive and equally effective?)
nBalancing (costs and gains)
n
n
n

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
nnational security, territorial integrity or public safety
nSpycatcher: Observer and Guardian v U. K. 1991 (not proportional),
nArrowsmith v U.K. 1980 (pacifist in Ulster – proportional punishment)
nprevention of disorder or crime
nJanowski v Poland 1999 (critique of policemen „when on duty“ making order in riots - „hlupki“)
nthe protection of health or morals
nAlmost unlimited, is there a „European morality“? Only Open Door Counselling v Ireland 1992 was
too much for ECHR (unproportional)
nOtto-Preminger Institute v. Austria (1994), Wingrove
nHandyside v. U.K. 1976 - The Little Red Schoolbook (O.K.)

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
nthe protection of the reputation or rights of others – most often, best for balancing
nLingens v. Austria 1986: "In truth Mr. Kreisky’s behaviour cannot be criticised on rational
grounds but only on irrational grounds: it is immoral, undignified“ (+ Wiesenthal + Peter)
n„The limits of acceptable criticism are accordingly wider as regards a politician as such than as
regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself
open to close scrutiny of his every word and deed by both journalists and the public at large, and
he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 enables the
reputation of others - that is to say, of all individuals - to be protected, and this protection
extends to politicians too, even when they are not acting in their private capacity; but in such
cases the requirements of such protection have to be weighed in relation to the interests of open
discussion of political issues.“ (42)
n
n

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
nLingens v. Austria 1986
n„In this connection, the Court has to recall that freedom of expression, as secured in paragraph 1
of Article 10, constitutes one of the essential foundations of a democratic society and one of the
basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph
2, 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 judgment…).“ (46)
n„In the Court’s view, a careful distinction needs to be made between facts and value-judgments.
The existence of facts can be demonstrated, whereas the truth of value-judgments is not susceptible
of proof. The Court notes in this connection that the facts on which Mr. Lingens founded his
value-judgment were undisputed, as was also his good faith.“ (41)
nFacts and value-judgments

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations
npreventing the disclosure of information received in confidence
nGoodwin v. U.K. 1996 – release your information source (unproportional)
nmaintaining the authority and impartiality of the judiciary
nSunday Times v. U.K. 1979 – Thalidomin („trial by newspaper“)
nSchöpfer v. Switzerland 1998 (punishment of advocate criticizing penal trial)
nDe Haes and Gijsels v. Belgium 1997 (critique of judges in pedophile case)
nWho, by whom, when, where, how?

Human Rights in Europe - Freedom of expression
Human Rights in Europe - Freedom of expression
Limitations in steps
nECHR judgment of 25 November 1996, Wingrove v. United Kingdom, application No. 17419/90
nQuestion for discrimination (is the law on blasphemy disciminating?) and universalism: Do you feel
offended
nas humans (dissenting Pettiti: Dante, Tolstoy)
nas Christians/Hréstians
nas lawyers?
n1. Are we in scope of Art. 10?
n2. Is there a violation?
n3. Was it "prescribed by law„?
n4. Did the interference pursued a legitimate aim? (which one?)
n5. Was the interference "necessary in a democratic society“?
n