Freedom of speech

Introduction

Freedom of expression is one of the most important fundamental rights in a democratic society. It is enshrined in Article 10 of the European Convention on Human Rights (ECHR)., applicable in Belgium and all other member states of the Council of Europe, as in Article 10 of the Charter of Fundamental Rights of the European Unionwhich applies in Belgium and all other EU member states. This right allows everyone to freely express and receive thoughts, opinions and information without interference from the government. The European Court of Human Rights (ECHR)., based in Strasbourg, emphasizes that this freedom applies not only to generally accepted or innocuous expression, but also to opinions that may hurt, shock or alarm. That pluralism and tolerance for diverse views are fundamental to a "democratic society."

Article 10 ECHR

Article 10 ECHR consists of two paragraphs. The first member reads as follows: "Everyone has the right to freedom of expression. This right includes freedom to hold an opinion and freedom to receive or impart information or ideas, without interference by public authority and regardless of frontiers." In other words, everyone can freely form and express their opinion, and also obtain information from others, without the government being allowed to interfere unlawfully. It is explicitly stipulated that states may subject media companies (radio, TV, film) to a licensing system - for example, to manage frequencies - but this does not affect the core of the freedom of expression.

The second paragraph of Article 10 recognizes that the exercise of free speech entails responsibilities and may be restricted under certain conditions. It says thus: "Since the exercise of these freedoms carries with it duties and responsibilities, it may be subjected to certain formalities, conditions, restrictions or penalties, provided for by law and necessary in a democratic society in the interests of the country's security, the protection of public order and the prevention of criminal offenses, the protection of health or morals, the protection of the good name or the rights of others to prevent the dissemination of confidential communications or to ensure the authority and impartiality of the judiciary." . In sum, then, the government may restrict speech only if it is by law settled, a legitimate purpose serves (such as the interests listed) AND necessary in a democratic society is. Below we discuss what this means.

What falls under freedom of speech?

The scope of Article 10 ECHR is very broad. Freedom of expression includes all forms of expression of information and ideas: spoken or written words, printing press and media, but it also includes artistic expression (e.g. paintings, films, literature) and commercial expression (such as advertising). Even symbolic acts or forms of behavior can fall under expression of opinion if they are intended to express an opinion - think of wearing certain clothing with a slogan, displaying a flag or holding a peaceful protest as an expression of a point of view. New media, such as the Internet and social media, also fall within the protection of Article 10. In principle, what someone writes or shares online - from news articles and blog posts to videos or posts on social networks - is just as protected as a newspaper article or speech.

Moreover, Article 10 protects not only the person expressing something (the speaker or writer), but also the recipient: everyone also has the right to receive information and ideas. This means, for example, that press censorship harms not only the journalist but also the public who have a right to knowledge and debate. The ECtHR has repeatedly said that the press and other speakers have a duty to inform the public about matters of public interest, and that the public has a right to receive that information. Free speech is thus indispensable for public discussion, cultural development and self-development of individuals.

Regarding the content of what is expressed, the protection of Article 10 is very broad: it also covers shocking, disturbing or unpopular opinions . For example, in the case Handyside t. United Kingdom (1976) that expressions that are perceived as offensive or disturbing by parts of society are also in principle covered by freedom of expression - especially in a pluralistic democracy, minority opinions and provocative ideas must be able to be expressed. Of course, such expressions can be restricted if the conditions of paragraph 2 are met, but they do not fall outside the definition of expression. Only in very extreme cases has the Court ruled that an expression does not deserve protection at all - think of explicit calls for violence or hatred that are so extreme as to fall under Article 17 ECHR (prohibition of abuse of right). In general, however, whatever someone thinks or says, no matter how controversial, it begins to enjoy protection under Article 10.

When are restrictions on freedom of speech allowed?

Freedom of expression is not absolute. Article 10(2) makes it clear that governments may restrict the right, but only under strict conditions. In practice, the ECtHR uses a three-step test to assess whether a restriction is justified:

1. Legal basis (legality) - The restriction must "provided for by law" be. This means that there must be a clear and pre-existing law or regulation authorizing the restriction. Citizens must be able to know what is and is not allowed; an interference that is not based on a valid law or that is too vague does not meet this criterion. Consider, for example, a criminal law against certain expression: it must define sufficiently clearly what behavior is punishable so that people can adjust their behavior accordingly.
2. Legitimate purpose - The restriction must serve one or more of the legitimate purposes listed in Article 10(2). These purposes are listed exhaustively in the Convention. Some important ones are: national security, public order and safety, prevention of crime or disorder, protection of health or public morality (moral values), protection of the good name (reputation) or rights of others, prevention of the leakage of confidential information, and maintaining the authority and impartiality of the judiciary. In practice, many restrictions fall under the interest of public order/security (e.g., to prevent hate speech or sedition) or the rights of others (e.g., to protect a person's privacy or good name). If a restriction does not clearly fit into such a purpose, then it is not permissible.
3. Necessary in a democratic society - This criterion is often the most difficult: even if there is a law and a legitimate purpose, the measure must also be necessary and proportionate. "Necessary in a democratic society" means that there must be a pressing social need for the restriction and that the infringement must be proportionate to the objective pursued. The authorities must be able to show that they did not restrict freedom of expression beyond what was necessary. The Court requires that the reasons for the restriction be relevant and convincing and that a balance has been struck between freedom of expression and the opposing interest. Here, the state has some discretion (the margin of appreciation), because what is "necessary" may vary by country and context, but the ECtHR is ultimately competent to assess whether the restriction was justified within a democratic society. Court rulings show that exceptions to freedom of expression must be interpreted strictly and necessity must be convincingly demonstrated. In other words, the standard is freedom, a ban or punishment is the exception that must be well substantiated.

So when a judge (in Belgium or in Strasbourg) judges a case, he will check: Is there interference with freedom of expression? If so, is there a legal basis for that interference? Does it serve one of the legitimate purposes listed in the Convention? And is it demonstrably necessary and proportionate? Only if all these questions are answered in the affirmative is the restriction permissible. If not, there is a violation of Article 10 ECHR.

Clash with other rights and interests

In practice, constraints often revolve around the balancing free speech against other rights or societal interests. Article 10(2) lists the most important ones. Some common areas of tension are:

• Privacy and good reputation of others: A classic conflict is that between free speech (Article 10) and the right to privacy and respect for reputation of others (protected by Article 8 ECHR). This occurs, for example, in media publications about the private lives of celebrities or ordinary citizens, in allegations of fraud or misconduct in the press, or in online posts that damage someone's reputation. Both are fundamental rights, and neither automatically takes precedence - trade-offs must be made on a case-by-case basis. The Court has developed criteria for determining which right takes precedence, such as: Does the expression contribute to a debate of public interest?; how well known is the person in question and what is his/her role in public life?; is it about facts or value judgments, and is there a factual basis for it?; How was the information obtained (legal/illegal)?; and what are the consequences of publication for the person concerned?. In cases such as Axel Springer AG v. Germany (2012) and Von Hannover t. Germany (2012) the ECtHR has applied such factors. In Axel Springer, the case involved a newspaper that reported on the arrest of a well-known actor; the Court held that the actor's privacy invasion weighed less heavily because he was a public figure and the news contributed to a public debate (abuse of drugs by well-known persons), so the publication ban violated Article 10. Conversely, in Von Hannover (concerning photographs of the private life of Princess Caroline of Monaco), privacy protection was actually deemed to outweigh the newsworthiness of the photographs. In short, a fair balance must be struck between freedom of the press and a person's privacy.
• Protection of religion and belief: Freedom of speech can also clash with the freedom of worship Of others or with the desire to groups against insult or hatred protect. Statements or publications that deeply offend religious feelings (e.g., deliberately provocative anti-religious films or cartoons) or that incite hatred against a faith group may be restricted by states to protect the rights of believers and the social religious peace preserve. The ECHR has in some cases, such as Otto-Preminger-Institut t. Austria (1994) and İ.A. t. Turkey (2005), given broad authority to states to protect religious feelings from serious offense. Here, the context is considered: is the expression pure art or opinion, or primarily intended to shock and offend? Is it criticism of religion (which should be permissible), or gross mockery without contribution to any debate? Again, a ban must be "necessary" in a democracy: for example, to religious intolerance or unrest prevent. Hate speech on the basis of religion or ethnicity certainly does not fall under the protection of Article 10, the Court has repeatedly confirmed. In fact, extreme forms of hate speech or negationism (such as Holocaust denial or calls for violence against a religious group) are often entirely excluded of protection by the ECHR under Article 17 (abuse of right). Thus, free speech also requires pluralism and mutual respect; where an expression is intended only to incite hatred and violence, the government may intervene to protect society.
• Public order and national security: Another area of tension is the security of the state and people. Freedom of expression may be curtailed to crime, unrest or terrorism prevent or to state secrets protect. For example, governments can take action against inflammatory speech that incites people to violence or against revealing confidential government information that harms national security. One example is the case Stoll t. Switzerland (2007), where a journalist was convicted of publishing leaked diplomatic documents; the Court held that in that particular context, the sentence was not a violation of Article 10, given the sensitive nature of the information and the duties and responsibilities of the press. In general, the Court looks critically at whether censorship or punishment is really necessary for public order: pure criticism of the government or the military, for example, may not be stifled under the guise of "national security" if there is no real danger from the expression. Demonstrations and political slogans are in principle covered by Article 10 (and Article 11 on association/assembly), even if they are unwelcome to the authorities. At the same time, it is understandable that, for example, calls to commit violence or active expressions of support for terrorist organizations cross borders. Each case thus requires a careful examination: does the expression concretely threaten public order or security? If so, intervention may be justified - but preventive censorship or excessive penalties are out of the question.

Finally context always of great importance. The same sentence may be permissible in a satirical article but punishable when shouted to an angry crowd in front of City Hall. The medium also plays a role: utterances on the internet for example, often have greater and longer-lasting reach than a local pamphlet. The ECtHR has recognized that online publications and social media have tremendous dissemination potential - information can travel the world in seconds and remain online for years - allowing harm to one's rights via the Internet may be greater than via traditional media . This may mean that governments have a little more leeway to regulate Internet expression to protect privacy or public order, for example. For example, there have been cases in which administrators of online platforms have been held responsible for extremely harmful reactions from users. In the case Delfi AS t. Estonia (2015) the Court confirmed that a major news portal could be held liable for hurtful anonymous reader comments on its website. Here, despite the protection of speech, the protecting the reputation and rights of others heavier, in part because the platform had a clear role in enabling and benefiting from those reactions. Importantly, such restrictions should not be used arbitrarily: freedom on the Internet is the rule, restrictions remain the exception, but users and platforms also have responsibilities.

The role of journalists, public debate and whistleblowers

An free press and open public debate are the lifeblood of a democracy. Journalists and media act as the "public watchdog" that scrutinize government and those in power and bring information of public interest to the public. The ECtHR has repeatedly upheld the essential role of the press emphasized as a guardian of public debate. Thanks to journalism, citizens can find out what is going on in society and form opinions about politicians, policies and abuses. Therefore, freedom of the press is usually broadly protected: authorities have only a limited margin to limit press releases, especially when reporting on matters of public interest. The task of the press to disseminate information and ideas on matters of public interest weighs heavily, and corresponds to the public's right to receive that information.

Journalists thus enjoy strong protection under Article 10, but the Court also emphasizes their "duties and responsibilities". Journalism professionals can be expected to act in good faith and according to the ethics of their profession - for example, by conducting proper fact-finding and adversarial hearings whenever possible - especially if they publish penetrating allegations. If that responsibility is met, the Court will soon find condemnation or censorship excessive, as it may deter others (chilling effect) and would cripple the press in its watchdog function. Journalists have also some freedom in style: even some exaggeration or provocation in posts is allowed, for example in opinion pieces or satire, as long as the core contributes to a debate. What is not allowed is deliberately spreading false imputations or pure sensationalism without any public interest at the expense of someone's rights.

The Court has made it clear in its case law that public figures have to tolerate more criticism than ordinary citizens. In Lingens t. Austria (1986), a case about a journalist who sharply lashed out at a politician and had been convicted of doing so, the Court stated that politicians and other public figures are "inevitably and consciously bring upon themselves close scrutiny of their doings by journalists and the public and thus must have a greater degree of tolerance.". In that case, the journalist's conviction was overturned by the Strasbourg Court: harsh political criticism, even if personally colored, falls under the heart of political debate and should not be sanctioned too quickly. This principle applies not only to top politicians, but to all people in public office or with public notoriety, albeit to varying degrees. Of course, libel and slander remain impermissible even for press and public figures, but the bar for what constitutes "defamation of honor" is significantly higher when public figures are involved.

A special category within freedom of expression are whistleblowers. These are individuals (often employees or civil servants) who bring wrongdoing to light within their organization or government out of conscience or in the public interest. Such disclosures often serve an important public interest (for example, uncovering corruption, or disclosing dangers to public health) but at the same time are almost always accompanied by a breach of a duty of secrecy or loyalty. The ECtHR recognizes that employees have a duty of loyalty towards their employer, certainly civil servants, but has also established in landmark rulings that whistleblowers deserve protection under Article 10 in circumstances. In the case Guja t. Moldova (2008) For example, a public servant was fired for making public letters showing political interference with justice. The Court held that this dismissal violated freedom of expression: the man had exposed serious misconduct that warranted public attention, and he acted in good faith without personal gain. In Guja, the Court formulated several criteria for lawful whistleblowing actions, including: (a) the nature of the wrongdoing (how serious is what is disclosed, does it affect the public interest?); (b) whether the whistleblower first tried to raise the issue internally or through other channels; (c) the authenticity of the material disclosed; (d) the damage the disclosure caused to the employer or those involved; (e) whether the whistleblower acted out of good intentions (in the public interest) or primarily out of self-interest/Frustration. If these factors are in favor of the complainant, the Court will tend to view whistleblowing as a protected form of expression. Since Guja, whistleblowers have been protected in several cases, such as in Heinisch t. Germany (2011) (where a nurse reported abuses in a healthcare facility) - here, the public's interest in knowing that abuses were occurring outweighed the duty of loyalty to the employer.

In addition, the judges recognize that even others than traditional journalists can perform a watchdog function, such as non-governmental organizations (NGOs) or independent bloggers who raise concerns about abuses. They may just as easily play a crucial role in the public debate and then also qualify for higher protection under Article 10. what someone does (contributing to public information), not solely for the title of "journalist.

In summary, freedom of the press and free debate is so important because it supports the rest of the democratic rule of law: without the free flow of information, there is no transparency, no accountability and no full-fledged democracy. The ECHR ensures that states respect this in principle. At the same time, media and citizens must use their freedom responsibly, respecting the rights of their fellow human beings and the security of society.

Some key ECHR rulings on Article 10

To illustrate, we list some core judgments of the European Court of Human Rights on freedom of expression, with a brief explanation:

• Handyside t. United Kingdom (1976) - This earlier case involved a publisher prosecuted for a booklet of sex education for young people ("The Little Red Schoolbook"), which was considered obscene at the time. Here, the Court explained the basic principles of Article 10. Although it vindicated the British authorities in this case (no violation of Article 10, given the margin of appreciation in the area of morals and the protection of children), the Court uttered the now famous words that freedom of expression also applies to information "that offends, shocks or distresses" . This ruling confirmed on the one hand that states have some policy latitude on morally sensitive issues, but on the other hand that the core of free speech is very broad. The Handyside Formula (protection also of shocking expressions) has since been frequently cited in subsequent case law.
• Sunday Times t. United Kingdom (1979) - The case involved a publication ban (injunction) against the Sunday Times, which wanted to publish a critical article on the thalidomide scandal (a drug that had caused birth defects) while a legal settlement was still pending. The British court had forbidden this in order to protect the authority of the judiciary protect (sub judice rule). However, the ECtHR ruled that this prohibition violated Article 10. The issue was of great public interest and the article was factual and not disrespectful to the court; the ban was not "necessary in a democratic society." This ruling is important because in it the Court made it clear that preventive censorship must be scrutinized very critically. Public health scandals and debates of social importance should not be muted simply for the sake of ongoing litigation unless there is a demonstrably serious threat to due process rights. Sunday Times affirmed the importance of freedom of the press in informing the public about judicial issues of public interest.
• Lingens t. Austria (1986) - Alfred Lingens, a journalist, had been criminally convicted of insulting the Austrian Chancellor after sharp criticism in a magazine article. The ECtHR decided that this conviction was article 10 violated. In the judgment, the Court explicitly formulated that politicians and public figures must endure more criticism than private individuals because they are in the public domain. The limits of permissible criticism are broader when it comes to an elected representative. Lingens' qualifications (among other things, he called the chancellor "the lowest opportunism" because of his attitude) fell under value judgments in a political debate, according to the Court. The Court emphasized that political debate the essence of freedom of speech and that criminal sanctions can be a dangerous deterrent to journalists seeking to control those in power. This ruling set the tone that press criticism of politicians may go very far, as long as it is not based on deliberate lies or pure swear word level.
• Jersild t. Denmark (1994) - Jersild was a Danish journalist who had made a TV report about a group of young neo-Nazis (the "Green Jackets"), in which these group members made unflattering racist statements. The journalist himself was subsequently criminally convicted of co-responsibility for spreading racist statements. The ECtHR found this to be a violation of art. 10: Jersild's intention was clearly to expose a social problem (racism among young people), not to propagate hatred. The statements, although shocking, came from the interviewees, and the journalist's contribution was journalistic in nature. The court ruled that the Punishment of a journalist for quoting third parties in a report is a dangerous curtailment of press freedom and journalistic autonomy. Journalists should be able to shed light on social phenomena, even if it reveals actionable opinions of others, as long as they do so with proper distance and intent. This case confirms that context crucial: what may be punishable as an isolated quote may still be protected in a journalistic context. Also, the Court again underscored here the role of the press as public watchdog and warned that journalists should not be held accountable after the fact for every statement their interviewees make, or they would become timid about investigating important topics.
• Guja t. Moldova (2008) - This is the aforementioned whistleblower case. Mr. Guja, employed by the Public Prosecutor's Office, had leaked letters from a politician pressuring the judiciary in an ongoing case. Guja was fired for breach of his duty of confidentiality. However, the ECtHR held that this dismissal violated the right to freedom of expression violated. The court acknowledged that Guja had a duty in principle to maintain confidentiality, but then weighed the circumstances: the letters showed serious abuse of power to that society was allowed to know; Guja had no personal gain from the leak and was acting in the public interest; and other, less far-reaching avenues of raising the issue offered no relief. Therefore, he enjoyed protection as a whistleblower. This ruling was fundamental because it was the first Grand Chamber ruling that whistleblower protection criteria formulated. Since then, employees who disclose internal wrongdoing can claim Article 10 protection if they meet certain conditions (such as good faith, raising the alarm internally first unless impossible, and great public interest in the information). Guja's case gave whistleblowers in Europe important precedent protection.
• Axel Springer AG v. Germany (2012) - Axel Springer is the publisher of a German newspaper (Bild) that faced a court publication ban in this case. The newspaper had reported on the arrest of a well-known television actor for a drug offense. The German court banned further reporting because it was the actor's privacy and innocence presumption would violate. The ECtHR rejected this prohibition, deeming it a violation of article 10. In its Grand Chamber ruling, the Court set forth a series of balancing criteria set apart for cases where press freedom and privacy collide. Factors such as: the familiarity of the person (here a prominent actor, meaning public figure), the nature of the crime (use of drugs - relevant to a public debate about role models), the behavior of the person in question (the actor himself often acted in publicity, so had to tolerate some intrusion), and the method of information collection (the news was based on a real arrest, not a rumor) played a role. The court concluded that the news coverage contributed to a debate of public interest (public figures and crime), and that the German court had gone too far with a ban. This ruling (along with the related Von Hannover No. 2 ruling) has become guiding principles for how national courts should weigh privacy vs. freedom of the press. The key message is that celebrities and public figures cannot expect the same degree of privacy in matters relevant to public debate, and that punishment or censorship against the press remains exceptional unless truly necessary to protect one's fundamental rights.
• Delfi AS t. Estonia (2015) - A modern Internet-related judgment that attracted a lot of attention. Delfi was a large Estonian news portal on which readers could freely post comments under articles. Under a critical article about a ferry company, very abusive and threatening comments appeared from anonymous users toward the ferry operator. Although Delfi removed the comments after complaint, the platform was still held liable by Estonian judges for the damage to the entrepreneur's reputation. Delfi challenged this by invoking Article 10, pointing to the free internet discussion and that the blame lay with the responders. The Grand Chamber ruling of the ECHR, however, ruled that Delfi's conviction was not was a violation of Article 10. The court emphasized that as a professional news portal, Delfi was bears responsibility for what happens on his site, especially since they were generating revenue from the activity and had technical control mechanisms in place but were not proactively enough removing the blatant hate messages. Important in the consideration was that the comments highly offensive and threatening were (hate speech and threats fall outside the core protection of Article 10) and that the aggrieved person had no other effective means of addressing the anonymous perpetrators themselves. Delfi therefore had to ensure prevention or prompt removal. This judgment shows that freedom of expression on the Internet also brings duties, and that large online platforms are not completely immune if their users seriously violate the rights of others. At the same time, this is a fairly specific situation: the Court indicated that this was not a small forum or an individual blogger, but a large commercial platform with significant impact. After Delfi, there has been plenty of discussion about the responsibility of social media and websites for user content, an issue that continues to evolve. But the bottom line is clear: The balance between free expression and protection of others must also be maintained online.

These rulings are just a sampling of the rich case law on Article 10 ECHR. They illustrate how the Court is always looking for a balance between freedom of speech (or publication) and necessary restrictions in the public interest or for the protection of others. Freedom of expression is the starting point, a cornerstone of an open and democratic society , and the ECtHR is careful not to restrict this right unnecessarily. At the same time, the Court recognizes that with great freedom also comes responsibility - "duties and responsibilities" - and that abuse of this freedom may be dealt with under strict conditions. For you as a citizen or press, this means that in Belgium and Europe you are highly protected to express your opinion, disseminate information or ask critical questions, especially when contributing to public debate. Should you nonetheless face censorship or legal action because of an expression, Article 10 ECHR provides an important review framework and possibly a legal remedy to defend your right. Thanks to this article and the case law on it, the foundation remains guaranteed that everyone may think, speak, write and inform freely - a freedom that we sometimes only really feel when it comes under pressure.