Freedom of Expression and Democracy

A fundamental characteristic of modern democratic states is the existence of the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by the public authority. The right to freedom of expression is not only a primary cornerstone of democracy, but also prerequisite for the enjoyment of many of the other rights and freedoms ensured in the European Convention on Human Rights. However, the freedom of expression is subject to certain restrictions that are ‘in accordance with law’ and necessary ‘in a democratic society’. This paper therefore aims to examine the scope and the definition of the right of freedom of expression following the case law of the European Court of Human Rights in its jurisprudence with regard to the right.

The scope Article 10

Article 10 states that the right to freedom of expression ‘shall include freedom to hold opinions and to receive and impart information and ideas’. The European Court on Human Rights (ECHR) gives a wide interpretation to the terms in Article 10 (1) and it has continuously expanded the parameters of protection under Article 10(1). The classic statement which captures the Court’s approach can be found in case Handyside v. the United Kingdom, [1] the Court found that the freedom of expression constitutes one of the essential foundations of a society and therefore the right is applicable not only to ‘information’ or ‘ideas’ but also to those that offend, shock or disturb the State or any sector of the population. Any consideration of Article 10 must therefore recognise not just the underlying principles behind freedom of expression but also the interrelationship between freedom of expression and democracy. As a general point therefore, when assessing the merits of a claim under Article 10 some consideration should be given to the relationship between Articles 10 and other rights in the Convention, in particular the right to respect for private life under Article 8 (1) and the freedom of association under Article 11. Furthermore in a similar way to Articles 8 [2] , 9 [3] and 11 [4] , Article 10(2) allows the State to impose limitations on the rights protected in Article 10(1). However, what is clear from Handyside v United Kingdom is that any limitations which are placed on the right must be viewed in the context of State’s being expected to give the broadest possible interpretation to freedom of expression, in the interests of promoting democratic values.

Under Article 10(2) an interference with the rights contained in Article 10(1) must satisfy the following criteria: (1) it must be prescribed by law ; (2) it must be necessary in a democratic society;(3) should pursue a legitimate aim under Article 10(2) [5] ;(4) any measures taken must be proportionate to the aim being pursued. In this respect, when determine the extent to which an interference with the right is permitted under Article 10(2) the Court will have regard to ‘the margin of appreciation’ which is afforded to the State, in matters of morality and national security particularly, but to an extent this applies to Article 10 (2) in its entirety.

Article 10(1) provides that ‘everyone’ has the right to freedom of expression and the approach of the Court is to give the term its literal and linguistic meaning. It applies both to natural and legal persons. The rights in Article 10 have been interpreted by the Court as being available to a range of natural persons including journalists in Goodwin v United Kingdom (1996), civil servants in Vogt v Germany (1995), serving members of the military in Engel v Netherlands (1976). It has also been found to apply to publishers in Unabhangige Initiative Informations Viefalt v Austria (2003) and to newspapers in Sunday Times v United Kingdom (1979).

Forms and means of expression

The Court has established that Article 10 covers most forms of expression and extends to all forms of opinions and views through any means that include the following:

Artistic expression through paintings, films or photographs come within the protection of Article 10. In Müller and Others v Switzerland (1988) the Court considered that an application which concerns the confiscation of paintings from a public exhibition, because of they included sexually explicit scenes, gave rise to interference under Article 10 (1). The Court made it clear that expression of ideas through art enjoyed the protection of Article 10(1). In Otto-Preminger-Institut v Austria (1994) ideas expressed in a film were found to enjoy the protection of Article 10(1). Similarly in News Verlags GmbH and COKG v Austria (2000) the Court found that photographic images constituted expression under Article 10(1).Material which is broadcast on the radio is also covered by Article 10 regardless of whether it is light entertainment or news Groppera Radio AG v Switzerland (1990).

Political expression is clearly covered by Article 10(1). The Court places a high value on the exercise of freedom of expression by elected members of the legislatures, holding that they must be proved bread protection to express themselves on matters of interest to their constituencies and to the public in general. In case Castells v. Spain (1992), the Court found violation of Article 10, when a member of parliament had been convicted of insulting the parliament.

Ideas and information contained in works of fiction are covered by Article 10 (1), in Alinak v Turkey (2005), the court found that a novel which was based on real life enjoyed the protection of Article 10(1).

Ideas which are published in an information leaflet are protected by Article 10. In Open Door Counselling and Dublin Well Woman v Ireland (1992), the court found that a leaflet which provided information about abortion clinics in the United Kingdom to women seeking to travel out of the jurisdiction to terminate a pregnancy came within Article 10 (1).

Commercial speech and expression is also covered by Article 10 Markt Intern Verlag GmbH v Germany (1989) the Court took the view that information contained in an advertisement constituted protected speech, at paragraph 26, the Court stated that information of a commercial nature “..cannot be excluded from the scope of Article 10 para 1 which does not apply solely to certain types of information or ideas or forms of expression”

Furthermore, Article 10 covers not only content, but also the means by which opinions and information are conveyed. This is so, since interference with the means of expressing opinions and or information, clearly interferes with the right to receive and impart information. It is extended to the press, books, film, art, radio and television broadcasts, graffiti, displaying posters and banners and the Internet.

Freedom of expression under Article 10 also entails the right not to express oneself. In Young, James and Webster v United Kingdom (1981) the European Commission on Human Rights took the view that a ‘closed shop’ which required employees to be members of a trade union prevented the employee from dissenting from the common views expressed by the Trade Union on behalf of all employees. The Commission followed the same approach in K. v Austria (1993), where it held that Article 10 was applicable to a person who refused to give evidence.

Furthermore, Article 10 states that freedom of expression ‘includes the freedom to hold opinions’. Holding opinions is to be differentiated from the right to freedom of conscience which is protected under Article 9(1).While the holding of opinions is the precursor to expressing views it is not ‘expression’ itself Barthold v Germany (1985). Article 10 protects persons against adverse consequences of having opinions ascribed to them on the basis of their previous public expression and the negative freedom protects them against being compelled to reveal what opinions they hold.

Article 10 includes also the right to receive and impart information. The Court has been careful not to interpret this as meaning that the Convention guarantees freedom of information and applications regarding access to information has been decided by reference to the right to respect for private life under Article 8 (1). For example in Leander v Sweden (1987), the court took the right to receive information under Article 10 could not be relied upon to argue that an applicant had a right of access to government files concerning his application for a government job. Any issues arising came within Article 8(1).

There is however few prohibited forms of expression that include extreme speech or hate speech which may interferes or undermines the rights of others. Occasionally the Court has relied on Article 17 of the Convention which prohibits any group or person from engaging in activity which destroys the rights provided in the Convention as the Commission noted in case Glimmerveen and Hagenbeek v the Netherlands(1979) where the applicants had been convicted for the possession and distribution of leaflets which called for the expulsion of non-white persons from the Netherlands. A further issue which arises is the distinction which is made between hate speech per se and speech which incites racial or religious hatred and which incites violence. Hate Speech and those who advocate such extreme views are without the protection of Article 10(1).

State responsibility under Article 10

Negative obligations

The primary obligation of States under Article 10 is to refrain from unlawful interferences with the exercise of the right to freedom of expression. The mechanisms of the State, must avoid any legislative, judicial or administrative interference with the rights which Article 10 is seeking to promote. For example, the State should not impose unduly restrictive measures that protect the State monopoly of television broadcasting [6] .Similarly it must also not apply law which inhibits the content of information or opinions that are expressed unless doing so is justified. As a general rule all restrictions on freedom of expression are to be discouraged under Article 10(1).

Positive obligations and the horizontal effect of Article 10

Article 10 also requires the State to take positive measures to promote the right to freedom of expression. While Article 10 is primarily concerned with regulating the activities of State authorities and those of State agents, it also has horizontal effect and applies to the actions of non State entities and private actors. The Court requires the State to act when an individual’s rights under Article 10 are under threat from a non-state actor and a failure to do so could in and of itself give rise to interference under Article 10.

Conclusion

Freedom of expression is a basic human right that is guaranteed by the European Convention on Human Rights and has a wide interpretation by the European Court for Human Rights. Furthermore, the freedom of expression is seen as the cornerstone of democracy, enabling people to freely express themselves in matters that are of personal concern to them or the society as a whole. 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.