Fall 2010, Issue#24
-BROCHURE (inside)
Dedication Theme: "Freedom of Expression" as the 9th Goal of the
Millennium Development Goals

Is Freedom of Expression Unlimited?
"I disapprove of what you say, but I will defend to the death your right to say it."
- Voltaire
article19 mdgs15

by Kaan NADIR

Human beings, since the codes of Hammurabi, have been seeking the rights merely for being human. In their earliest form, they were the first steps in the gradual improvement of these rights over time. As human beings developed mentally it realised that not only basic needs (such as shelter and nutrition), but also other, more modern, requirements were sought in order for society to progress.  The first modern attempt at regulating human rights was the Universal Declaration of Human Rights created just after World War II during which human beings witnessed the most horrible atrocities of the war. (UDHR) Briefly, its aim was to protect the citizens against state tyranny, promote equality and human dignity, and to foster peace between nations. Moreover, it was the first modern document clearly stating the right to freedom of expression and its variations although it was not legally binding.

Although it was first safeguarded by UDHR in its articles 18-20, one of the first legally binding document enshrining the right to freedom of expression was the European Convention of Human Rights. (ECHR) In fact, Articles 9, 10 and 11 of ECHR, secures the right to free speech and related rights. It was followed by the International Covenant on Civil and Political Rights. (ICCPR) . Safeguarding free speech American Convention and Asian Convention on Human Rights were adopted after those treaties. Being related to freedom of expression, Articles 18 and 19 of ICCPR are mostly in line with the abovementioned articles of ECHR. Mainly due to its capacity to allow the societies to develop, freedom of expression is regarded as one of the prominent rights that must exist in present day civilisations. The quote, being mainly attributed to Voltaire, ‘I disapprove of what you say, but I will defend to the death your right to say it’ is exactly what I will examine in this paper.

What are the ways by which individuals express themselves? Is it made up of only verbal speech? Is the right to free speech in fact more important than others? Why should it be protected? Should it be, as the quotation implies, unlimited? What if there is no limitation and what if there is?

As a method of communication between individuals, a verbal speech is only one of many ways. In fact, an article in a newspaper, a television programme, a silent protest by a group on the street, a painting published in a journal, a gesture by an important political figure are all different ways of expressing feelings and thoughts.

There are several approaches to legitimize the protection of free speech. The most widely applicable reason to be provided could be its capacity to allow society to reach solutions of significant issues. In fact, it has been acknowledged that the right of citizens to criticise government, laws and social conditions intrinsically exists in the basic principle of democracy that individuals are governed by themselves via their representatives. As a matter of fact, it would not be correct to suggest that free speech is protected if only it is a supplement to the proper functioning of democracy, as this would exclude other types of expressions from which speaker or audience may hope to benefit. Therefore wider range of reasons should be sought.

Discovering the truth : One of he reasons shown to legitimize the free speech protection is the belief that a free, widespread discussion leads to the discovery of the truth. If prohibition is allowed, the individuals will be deprived of the accurate facts of outstanding issues. This approach has been challenged with the argument that government would proscribe those kinds of expressions which are thought to be wrong. For example, denial of the existence of holocaust which is widely accepted by international authorities would not be allowed if the truth argument were to be accepted.

European Court of Human Rights (ECtHR), as it has reiterated many times, highlighted self-fulfilment of individuals as one of the reasons for protection of free speech. This implies the opportunity for the citizens to disseminate their thought and receive opinions of all kinds as much freely as possible, which leads the self-confidence and the growth in their personality. Article 1 of ICCPR is partly in line with this approach. Article 1/3 of the said treaty obliges the state to support individuals in realising the right in question. However, this approach is also challenged in that ‘It justifies too much protection, instead of too little. It extends to all form of speech, and seemingly any form of conduct that leads to individual self-fulfilment.’

Interest of the parties:
It has been argued that there is a mutual interest of both speaker and the recipient in free expression. For example, a political speech before the election is greatly valuable for both the political party represented and those interested in this speech.

As cited in Maryland Law Review, It was once claimed by the Massachusetts Declaration of Rights 1780 that “The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of people, that it can not be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.” Is it truly rational to support this suggestion? Should freedom of speech be not restricted at all?

This suggestion is not viable in the first place in that this will lead to the violation of other rights as well as the rights of others. To illustrate, claiming to be exercising one’s right to freedom of imparting information, obtaining details of someone’s sexual life, would it be reasonable for him or her to disseminate those private details to others? It would undoubtedly be the violation of the right of the person in question to respect for private and family life.

Neither ECHR nor ICCPR allowed free expression limitlessly, albeit the latter’s restrictions seem to be narrower than the former. While article 19/4 of ICCPR lists its restrictions as ‘the rights and reputations of others, the protection of national security, public order, public health and morals’, article 10/2 of ECHR, alongside the restrictions of ICCPR, adds ‘territorial integrity, preventing the disclosure of information received in confidence and maintaining the authority and impartiality of the judiciary’ as exceptions to free speech. However, the restrictions provided for in both instruments are far from clear, and many contemporary free speech issues remains to be clarified.

What, then is the scope of freedom of speech? As once stated by the ECtHR ‘..the Convention is a living instrument which must be interpreted in the light of present-day conditions’. The same principle was also reiterated in the views of Human Rights Comitte.

In determining the meaning of free speech, the coverage of a communication does not necessarily mean that it is protected in all instances. To put it another way, political speech, which is an especially important area covered by the principle may not be protected in a particular instance. For example, when a particular society is in a fragile condition due to some social turbulence, a public discourse inciting hatred against a particular section may lead to a criminal prosecution.

Barendt argues that although free speech principles have their limitations, any regulation by the government should have a sound basis. Any prohibition against a publication or penalisation of it solely on the grounds that it is offensive or reduces the governments authority and reputation would not be in line with the principles in question. ECHR, in its judgement in the case of Handyside v. UK, ruled that “Freedom of expression constitutes one of the essential foundations of such a society, ......... 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 the State or any sector of the population." The Court further noted that the concept “necessary” required for the restriction of free speech means ‘pressing social need’.

According to the Court, although the states have a margin of appreciation in this regard there is European supervision over states parties and the final decision on whether a particular restriction is in line with the principle is made by the ECHR. As cited in Rehman, repeating the same principles, The Human Rights Committee (HRC) found violation in the conviction of a journalist who made a subversive comment against a state ordinance.

In determining the scope of the principle, hate speech plays an important role. Many national and international regulations have restrictions concerning it. The criterion “capability to cause disorder or crime” is generally used for the justification of these kinds of regulations.

Nevertheless, using this restriction to the fullest extent could lead to the infringement of the free speech. Regrettably, by drawning on Article 17 of ECHR, the ECtHR and national courts infringed the right under examination when they concluded that Holocaust denial was not protected under the free speech principle. The reason that was cited by ECHR was the falseness of the claim by the applicant, disparaging the deceased during the Holocaust. These are not legitimate criteria proving that there is a pressing social need or necessity to prevent the disorder. This conclusion is also contrary to the statements that a speech may not be prohibited merely because it is shocking or disturbing to the mainstream society. In a case relating to a broadcasting ban on the recording of a real abortion on the grounds that it was disturbing and offensive to the public, Lord Scot of Foscote suggested that such a ban treats the public like children who need to be protected from the unpleasant reality of life and underestimates their political maturity.

So far, various approaches concerning the reasons for the protection of free speech and the scope of this have been examined. None of the approaches for legitimizing the special protection of free speech can be confidently excluded, and each of them can be utilised when appropriate. It is not possible to define the scope of free speech and varies from country to country and in time. The most important figures for drawing the boundaries within which we can speak freely are judges and the more they are broadminded the more we are free. In doing this, in order to be respected, judges should remain within the law and should not be politicised.

1. The General Assembly of the United Nations consisting of the then 58 member states adopted Universal Declaration of Human Rights unanimously, albeit with 8 abstentious. It is a sole proclamation in its nature, and not binding. See also, the website of the United Nations at :
2. Francesca Klug, ‘The Universal Declaration of Human Rights: 60 years on’, Public Law 2009, page 207
3. ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’, entered into force on 3rd September 1953, hereinafter referred to as ECHR)
4. ‘International Convention on Civil and Political Rights’, hereinafter referred to as ICCPR
5. James Weinstein, Ivan Hare, ‘Free Speech and Democracy’, Entertainment Law Review, 2009, pages 288
6. Ibid, pages 289
7. Eric Barendt, ‘freedom of speech’, p.7, (2nd edition, OUP, Newyork-2005), (cited in this paper as “Barendt”
8. Ibid, p.8
9. Lindon, otchakovsky-Laurens and July v. France, 22 October 2007, application number: 21279/02 and 36448/02.
10. Article 1 of ICCPR is as following: “All peoples have the right of self-determination….They freely determine their political status,..freely pursue their economic, social and cultural development.
11. Theories of free speech, Oxford Journal of Legal Studies Volume 7, issue 1, George Rutherglen P.119
12. Barendt. above, n. 7, p. 23-24
13. Maryland Law Review, 1983, no:3, volume 42, p.434
14. Selmoni v. France, 28. July 1999, application number: 25803/94, pharagraph 101. The same principle was also reiterated in the views of Human Rights Committee.
15. Roger Judge v. Canada,Communication No: 829/1998, 20.10.2003.
16. Barendt, above, n. 7, p. 75-76
17. Barendt, above, n. 7, p. 7
18. Handyside v. UK, 7 December 1976, application number: 5493/72, pharagraph 49
19. Ibid, pharagraph 49
20. Javaid Rehman, International Human Rights Law, Second Edition, p. 102
21. Article216 of Turkish, Article 130 of German Penal Codes and Article 20 of ICCPR are some examples of this.
22. Withzch v. Germany, application number 7485/03, 13 December 2005.
23. Regina v British Broadcastign Corporation, House of Lords, 25 May 2003,[2002] EWCA Civ 297

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