Is Freedom of expression so important and essential for the functioning of a democracy that there should be no limits to it?
Freedom of expression is one of the basic rights ascribed to any member living in a democratic society1. The litmus test for efficient measurements of a society’s development is the extent to which the citizens of those nations are able to practice free expression. However, in an autocratic regime this right is conspicuously absent, where a free press, freedom of speech and other similar rights, which could in some way criticize the sitting government, are effectively blocked. Conversely, the idea around which a democratic nation revolves is enforcing the right to free speech and expression, defending it and ensuring its continued development2.
The importance of freedom of speech is not limited just to democracies; it is also a right that is essential to every human being if they are to be free to form their own opinions and discuss and propagate these opinions without coercion. However, there are boundaries to freedom of expression that even democratic countries impose. These restrictions are based on the historical, political and sometimes religious environments of those countries. For instance, the propagation of Nazi ideologies or the promotion of any form of Nazi memorabilia in Germany and France is particularly strict, given the painful history of the Second World War, along with the presence of a culturally diverse population which necessitates restrictions on racially charged speeches. Boyle contends that:
"... a society that respects freedom of expression is not one where there are no restrictions on that freedom. There are always restrictions...[A] healthy society is to be measured ... by noting whether there is open public debate and argument about the necessity of restriction in particular cases.3"
Logically, a nation that would take measures to counteract any positive movement that might create unrest within a society cannot be considered a healthy nation. However, the issue that is particularly problematic when it comes to countries that encourage freedom of expression is a general consensus on how to balance the many competing interests. This paper will critically analyze the extent to which freedom of speech and freedom of expression can be dominant over other interests in democracies and whether there the restrictions should be eliminated altogether. This essay will also look at freedom of expression in the UK in general and on Article 10 of the European Convention on Human Rights (“ECHR”) in particular. The first part of the essay will look at how freedom of expression is practiced in the European Union while the second part will focus on the development of this right in the U.K.
The Doctrine of Margin of Appreciation
The ECtHR plays a subsidiary role, as opposed to that of the signatory States, in identifying the threat that is posed by freedom of expression, and it is this identification, that results on restrictions being imposed on it. This means that the States, " by reason of their direct and continuous contact with the pressing needs of the moment, ... "4 are in a more advantageous position to determine if a right guaranteed by the Convention should be restricted or not. The Court called this the "margin of appreciation".5 The ECtHR, placed with the responsibility for making sure "the observance of those States' engagements, is empowered to give the final ruling on whether a restriction is compatible with the rights guaranteed by the Convention.”6 Even though the margin of appreciation is not devoid of problems, it does attend to an important issue; evaluation though supervision at an international level acts as a valuable tool in attempts to prevent freedom of speech from being unnecessarily restricted which thereby ensures that this right is uniformly distributed, across borders, over a vast region.7
The margin of appreciation operates to regulate how diverse States treat fundamental rights; rights that are declared to be of universal application across the territories of signatory States. It allows the different States some autonomy in how exactly they prioritise human rights over other interests. This autonomy is kept in check by the various conditions that are imposed on State actions before the Court can accept restrictions of Convention rights as legitimate. By reserving the ultimate authority to decide exactly which types of restrictions are “necessary for the proper functioning of a democratic society for itself, the Court maintains overall control of the boundaries of free speech and expression even where day to day decisions on restrictions are left to States. However, as the margin of appreciation amounts to a grey are in the restriction of rights by States. This is because when a contested restriction falls within the margin of appreciation, provided that a State can show just cause, even onerous restrictions become legal. In this sense, the Court is felt by many to be giving up its powers to actively regulate the protection of Convention rights in favour of a more passive system whereby the States receive the benefit of doubt rather than individual rights holders. This has led many to question the Court’s creation of this doctrine8 but even so, as the rest of this essay demonstrates, the Court retains significant control over how rights are protected throughout Europe as a whole.
Freedom of expression under the European Union
The European Court of Human Rights (“ECtHR”) was formed in 1959 as it set up to implement the European Convention for the Protection of Human Rights (“Convention”).9 The Council of Europe created the Convention after the glaring human rights violations that transpired during the Second World War. 10The ECtHR studies and works on cases that were first pleaded in the national courts of the signatory States and ensures that the States abide by the certain fundamental rights and freedoms of the individual should not be subordinated to the power or narrow political convenience of the State.’11
Article 10 of the Convention the direct source of freedom of expression in the Convention. It states:
“(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 broadcasting, television or cinema enterprises.
(2) 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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
What can be noted here is that on the one hand the Article guarantees freedom of expression, although Article 10 (2) seems to tame it to the extent that of allowing certain types of restrictions. One of the reasons that this right was phrased in such a way in Art 10(2) could be to protect individuals as well as their reputations. Cases such as Lingens v Austria12, where an Austrian journalist was found guilty of making derogatory statements in a Vienna magazine about the Austrian Chancellor, demonstrate this facet. The ECtHR did not see this as case that it to be considered under Article 10, nor did it belong to Article 8 (The right to privacy). A right to reputation cannot be justified under a literal interpretation of Article 10 (2); even though it could be argued that this section is phrased in a way that justifies restrictions that ensure strong protection of reputations. Subsequently, the decision in this case was based on the law of defamation. This conflict was also evident in the Court’s decision in Lesnik v Slovakia13, in Feldek v Slovakia14 and Radio France v France, in which the court contended that is ... one of the rights guaranteed by [Article 8], as one elements of the right to respect for private life."15 What these cases suggest is that freedom of expression is effectively serves to allow people to state their opinions freely whether it’s done "the right to protection of one's reputation vocally or in writing or in an artistic form. However, if individuals resort to wild, damaging accusations and use the right to incite violence and hatred they then runs the risk of abusing Art (10) and Art (8). Aside from defamation cases, freedom of expression is also restricted for the protection of national security interests, public order, health and morals, as well as territorial integrity.16 Interestingly, In Observer and Guardian v United Kingdom, the ECtHR suggests that the exceptions to freedom of expression have to be properly interpreted and that restrictions have to be made distinguishable.17 It could be argued that not much attention has been given to the ‘exceptions’ of freedom of expression. This depends on the extent to which the ECtHR actually prioritises freedom of expression through the interpretation they place on a term such as ‘restrictions’. What the ECtHR tends to analyse is whether or not he restrictions placed by State authorities on the rights are reasonable and objectively fair, in addition to examining the legitimacy of the reasons given to justify these restrictions.18 What can be learned from these cases is that restrictions should be imposed for particular aims, which must be provided for by law. The restrictions should be proportional and of such a nature as to be imperative in a democratic society.19 Thus the approach of the Court is to provide substantive guiding principles that national courts can then implement domestically, rather than creating a rigid and exhaustive list of acceptable restrictions20.
Freedom of Expression in the UK
Article (10) holds a prominent place in the UK as this right is especially important for the press. In this regard Reynolds v Times Newspapers21 was a landmark case on qualified privilege and was subsequently considered in detail in numerous cases including the Court of Appeal’s decision in Loutchansky v Times Newspapers22. In this case, it was rightly seen by the Court of Appeal that Reynolds v Times Newspapers had completely reformed from the previous approach. Moreover, an observation was made by the courts recognized the particular interest that underlies in the Reynold v Times Newspapers, saying that:
‘The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed ... The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function. His task is to behave as a responsible journalist. He can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly ... Unless the publisher is acting responsibly privilege cannot arise.’23
Furthermore, In the case of Ashdown v Telegraph group24, the court held that the copyright laws showed a balance between the right to freedom of expression and the right to peaceful enjoyment of possessions. In relation to the case, the Copyright Designs and Patents Act 1988 was reinterpreted as to enhance the right to freedom of expression.
In London Regional Transport v The Mayor of London25 the Divisional Court had observed that, taking into account Art.10, it was not possible to consider confidentiality as an unqualified requirement and the Court did not any have any choice than to enforce the confidentiality agreement. However, given the nature of the case, the defendants should have to show an exceptional case so as to justify the publication of the news can be justified. In this case the court found that the material, which was to be published, had genuine public interest and hence they had the right to publish it. The Claimants did not put forward a compelling case of harm and hence the court allowed publication. The Court of Appeal in the case of A-G v. Punch Ltd considered contempt of Art 1026 by a third party.27 Lord Phillips M.R. observed:
“Third parties are not directly bound by the terms of such an injunction. If they are to be held liable for the contempt of interfering with the course of justice it must be demonstrated that the disclosure made by them defeated, in whole or in part, the court's purpose in granting the injunction and that they appreciated that it would do so. This will be particularly difficult to demonstrate if the court adopts the approach of ordering injunctions in wide terms, but delegating to the claimant the role of determining what is and what is not to be restrained from publication.”28
In all these cases, a trend is visible. The courts of the UK have developed their own approach to the doctrine of margin of appreciation. In order for a restriction to be unjustified, it must be shown that not only was there a vital interest that was served by free speech; it must also be shown that the restriction negatively affected that vital interest. In other words, a newspaper editor may find his right to free speech protected if his research was carried out with due care and diligence whereas someone who seeks to abuse free speech provisions to cause harm to others may find that the same restriction when applied to him, falls within the margin of appreciation. This dual approach helps prevent both the State and the individual citizens from misusing the provisions of free speech provisions. The right to free expression does not exist in the abstract in such a system. It crystalises into a concrete legal right, although its relative strength depends on the nature of the competing interests that it is being balanced with, along with the nature of the purpose to which individuals put this right to use. It is this approach to freedom of expression that allows national courts to protect competing individual rights such as the right to private life without necessitating a new tort of invasion of privacy. Whether privacy is invaded by free speech now depends, among other things, on the speaker’s intentions and motives.
Some jurists question whether free speech and the freedom to express thoughts, ideologies or feelings can properly be regarded as essential rights in a democracy. Every democratic government around the world gives these rights, as a matter of law, to its citizens. However, every democratic society tries to balance these rights with other competing rights and interests. This seems to suggest that fundamental rights are, to a large extent, all interdependent. In contrast to the constitutions of most democratic systems around the world, the EU Convention does not set down exhaustive limitations. Traditionally, a margin of appreciation has been granted to the European nations because of the political homogeneity that is prevalent in Europe as well as the ability of nations to deal with any violations. Yet, the ECtHR has had to decide several cases pertaining to this matter so as to narrow the limitation down so as to clearly state the scope of restrictions. EU member States have adopted these decisions into their existing legal systems remarkably well. In Europe, Article 10 has provided the member States with a good framework whereby the courts are able to develop significant legal principles in this area as well as helping to provide clear guidance as to the situations wherein a freedom of expression claim will be successful. The most significant aspect of this is that it requires the court to consider if the interference with the freedom of expression is justifiable and proportionate. National security, confidentiality and the protection of reputations are some of the considerations that are listed in Art 10(2). The Court has clearly clarified the level of public interest necessary and demonstrated situations in which it would permit a limitation on Art 10(2). If even more protection is to be achieved for free speech and expression, then the courts will have to go further than the limitations set by Art. 10. Even though an ideal level of freedom of expression and balance seems unattainable, open debates as well as promotion of the freedom of speech and expression are a healthy direction in which to move.
1 Ben Clarke, ‘Criticism of religion: What are the limits?’  eLJ 14(2).
2 Paul Mahoney and Lawrence Early, ‘Freedom of Expression and National Security: Judicial and Policy Approaches Under the European Convention on Human Rights and Other Council of Europe Instruments’ in Sandra Coliver et al (eds), Secrecy and Liberty: National Security, Freedom of Expression and Access to Information (Martinus Nijoff Pub 1999).
3 Kevin Boyle, ‘Freedom of Expression and Restriction on Freedom of Expression’  (Asia-Europe Interngovernmental Human Rights Workshop 2, Unpublished).
4 Ireland v United Kingdom App no 5310/71 (ECHR, 18 January 1978).
5 Onder Bakircioglu, ‘The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases’  8 GLJ.
7 Yves Winisdoerffer, ‘Margin of Appreciation and Article 1 of Protocol No.1’  19 HRJ.
8 Paul Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’  19 HRLJ 4.
9 Willi Fuhrmann, ‘International Law and Religion Symposium Article: Perspectives on Religious Freedom from the Vantage Point of the European Court of Human Rights’  BYULR 829.
10 Keturah Dunne, ‘Addressing Religious Intolerance in Europe: The Limited Application of Article 9 of the European Convention of Human Rights and Fundamental Freedoms’  30 CWILJ.
11 Lingens v Austria (1986) 8 EHRR 407.
13 Lesnik v Slovakia ECHR 2003-IV.
14 Feldek v Slovakia ECHR 2001-VIII.
15 Radio France v France ECHR 2004-II.
16 Donna Gomien, David Harris and Leo Zwaak, ‘Law and Practice of the European Convention on Human Rights and the European Social Charter’  CEP.
17 Observer and Guardian v United Kingdom App no 13585/88 (ECHR, 26 November 1991).
18 Steven Greer, ‘The Exceptions to Articles 8 to 11 of the European Convention on Human Rights’  14 CEP.
19 Clare Ovey and Robin White, Jacobs & White: European Convention on Human Rights, (3rd edn OUP 2008).
20 Kirsty Hughes, ‘Balancing Rights and the Margin of Appreciation: Article 10, Breach of Confidence and Success Fees’  JML Vol 3, No 1, July 2011.
21 Reynolds v Times Newspapers Ltd  4 All ER [HL] at 609, per Lord Nicholls.
22 Loutchansky v Times Newspapers Ltd (No 2)  1 All ER 652 [CA].
24 Ashdown v Telegraph Group Ltd  EWCA Civ 1142.
25 London Regional Transport v The Mayor of London,  EWCA Civ 1491.