Freedom of expression – does it need to be defined?

2015

In the context of wishing to prevent abuse, there is a growing debate among policymakers on what constitutes freedom of expression, notably on the Internet. However, instead of trying to come up with a definition, it would be much better to decide on the basis of the jurisprudence of the European Court of Human Rights as to which restrictions are acceptable. Freedom of expression is without doubt one of the cornerstones of a pluralistic democratic society. And, increasingly, the Internet has become its most important vector. However, freedom of expression would have little value if it applied only to uncontroversial ideas, speech
or opinion.

One of the key messages of a major conference held at the Council of Europe in Strasbourg on freedom of expression (Strasbourg, 13-14 October 2015) was that we must base ourselves on the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (the Court) whenever laws or policies which restrict free speech are envisaged. As the Court has repeatedly held, Article 10 of the ECHR, which guarantees to everyone the right to freedom of expression, also protects controversial speech, including ideas that offend, shock or disturb.

Article 10 ECHR does not oblige States to legislate, or adopt policy definitions, on what freedom of expression is and what it is not. Nor do States need to outline which statements contribute to the public debate and which do not. This would not only be an impossible task – as freedom of expression is as diverse as human thought – but also it would subject freedom of expression to the legislator’s notion of what public debate should be about.
Article 10 para. 2 ECHR does authorise, under strict conditions, restrictions to freedom of expression. And of course it is very important for public authorities to combat terrorism child pornography, and other serious crime, on the Internet.

According to the jurisprudence of the Court, in a democratic society any restriction of freedom of expression must be prescribed by law. Moreover, it must be clearly established that there is a pressing social need for the restriction and a clear proportionality between the means used and the legitimate aim pursued. The only statements that cannot claim legal protection afforded to free speech are those which, read as a whole and in their immediate and wider context, can be seen as a call for hatred, violence and intolerance. Even in relation to such statements the Court judgments can be defined as highly context-specific. The Court takes into account several contextual factors such as the political and social background, the direct or indirect link to
violence, hatred or intolerance and the manner in which such statements are made.

The Court has confirmed this approach in its recent judgment in Perniçek v. Switzerland (October 2015) which concerned a criminal conviction for statements that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide. In assessing the proportionality of the conviction the Court looked at the nature of the statements, the context in which they were interfered with, and the extent to which they affected the Armenians’ rights. In addition, it examined the existence or lack of consensus among the ECHR State parties on the need to resort to such statements, the existence of international law rules on the issue, the method applied by the national courts to justify the applicant’s conviction and the severity of the interference.

Freedom of expression is not only about ensuring that everyone is free and able to express himself/herself, and to seek, receive and impart information and ideas, regardless of frontiers. The ECHR also ensures that all means of communication, including the media and the Internet, are protected against illegitimate interference by both public and private actors. As it is States who are responsible under the ECHR, it is for them to ensure that private actors, which have a growing capacity for interference on the Internet, can be held accountable. This was clearly stated in the case of Yildirim v. Turkey (2012), where the access was denied to the applicant’s
website. The Court said that Article 10 of the ECHR applies not only to the content of information but also to the means of its transmission, such as the Internet. The choices we make on legal regimes for Internet intermediaries’ liability regarding usergenerated-content will also have an impact on free speech online. Another recent case before the Court, Delfi As v. Estonia (2015), concerned the liability of an Internet news portal for offensive comments posted below an article by its readers. The Court found that the domestic
courts were justified in holding the portal liable for comments considered to be hate speech.

Many people have raised questions about a possible collateral damage this judgment might have on freedom of expression and the legal uncertainty it brings to regulation of Internet intermediaries and publishers. Yet the limited scope of this judgment, which concerns only professionally-managed Internet portals run on a commercial basis, would indicate that such concerns are, premature. A long and no doubt, passionate debate on a definition of free speech is unlikely to bring much.

Instead, when there are good and legitimate reasons to consider certain restrictions, including on the Internet a careful assessment should always be made as to whether the proposed measures are ‘Strasbourg-proof’, that is compatible with the high human rights standards of the ECHR.