Freedom of expression:

underlying principles and sources

Training workshop on defamation law
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.

(Universal Declaration of Human Rights)

 Brainstorm

Make a list of reasons why freedom of

expression is important.
 Allows individuals to express their opinions
Less corruption
Freedom from hunger
A healthier society
Respect for environment
Respect for fundamental human rights
Improve national security
Make the political system more democratic
Make the government more efficient
Lead to better decision-making
Help the economy become more efficient
Individuals will receive better treatment from institutions
Most of these are social benefits, not just
individual ones. Hence the mass media play a
crucial role in realizing the right to freedom of
expression.
Freedom of the press affords the public one of the
best means of discovering and forming an opinion
of the ideas and attitudes of their political leaders.
In particular, it gives politicians the opportunity to
reflect and comment on the preoccupations of
public opinion; it thus enables everyone to
participate in the free political debate which is at
the very core of the concept of a democratic
society.
(European Court of Human Rights)
We have seen that freedom of expression is
important in helping to achieve other human
rights, such as political participation, health,
food etc.

But what happens when freedom of expression

conflicts with other rights?
 Brainstorm

How might freedom of expression come into

conflict with other rights?

Privacy
Reputation
Freedom from hatred or discrimination
Right to a fair trial etc
In Europe, freedom of expression may be limited on any of the following
grounds:

To protect the rights or reputations of others

National security
Ordre public (which means not only public order, but also general public
welfare)
Public health or morals
Territorial integrity or public safety
Confidentiality of information received in confidence
Authority and impartiality of the judiciary.

(European Convention on Human Rights ECHR and International

Covenant on Civil and Political Rights - ICCPR)
 The three-part test

Any limitation of freedom of expression must be decided according to

the following test:

Step 1: Any restriction on a right must be prescribed by law.

Step 2: The restriction must serve one of the prescribed purposes

listed in the text of the human rights instrument (on the previous
slide).

Step 3: The restriction must be necessary to achieve the prescribed

purpose.
 1. Prescribed by law

Written in a law?
Adequately accessible?
formulated with sufficient precision to enable
the citizen to regulate his conduct.?

If not, then the limitation is not permissible.

 2. Legitimate aim

Legitimate restrictions in Article 10(2) of the ECHR:

interests of national security

territorial integrity or public safety
prevention of disorder or crime
protection of health or morals
protection of the reputation or the rights of others
preventing the disclosure of information received in confidence
maintaining the authority and impartiality of the judiciary

If it is not one of these aims, then the limitation is not permissible

 3. Necessary (in a democratic
society

Is the proposed limitation proportionate to

the aim?
Is it the least restriction required to fulfil the
aim?
Is there an overriding public interest in making
the information available?
A restriction may not put in jeopardy the
right itself.
 Scenario 1:

A newspaper publishes a list of women who are alleged to

have had abortions. The information comes from medical
records leaked to the paper by a staff member in a clinic who
is opposed to abortion on religious grounds.

A number of the women whose names are published sue the

newspaper for violating their right to privacy. What do you
think the court should decide?

One of the women is a prominent politician who is well-

known for her anti-abortion views. Should the decision be
different in her case?
 Scenario 2:

A newspaper publishes details of the business interests

of the Minister of Defence. (He owns a shoe factory.)

He takes the paper to court for breaching his privacy.

He says that his business dealings are his own private

affair.

What do you say?

 Scenario 3:

An opposition organization publishes a series

of satirical cartoons about the President on its
website.
He is portrayed as a monkey, an alcoholic
and a would-be ruler for life
The prosecutor initiates a criminal inquiry,
claiming that the cartoons have defamed the
President.
If you were the judge, what view would you take?