Conflict of rights and interests

The ECtHR’s Press Service published an updated factsheet that includes the Court’s case law and pending cases grouped by themes on hate speech. The factsheet explains two approaches used by the Court in considering such cases: 1) “the approach of exclusion from the protection of the Convention,” based on Article 17; and 2) “the approach of setting restrictions on protection,” based on paragraph 2 of Article 10. The two approaches structure the first part of the cases’ list, which is not exhaustive; each case is marked by a narrower corresponding theme (“Threat to the democratic order,” “Racial hate,” “Incitement to violence or hatred against people because of their sexual orientation,” “Incitement to ethnic hatred,” and “Extremism” among many others). The factsheet’s second part contains two big groups of cases sorted as “Online hate speech” and “Hate speech and right of others to respect for private life.” The most recent cases highlighted in the factsheet include Lenis v. Greece and Rivadulla Duró v. Spain (both are decisions on admissibility), Ossewaarde v. Russia, Fragoso Dacosta v. Spain, Sanchez v. France, and Valaitis v. Lithuania. 

“The International and national laws recognize that extraordinary circumstances require extraordinary measures. This means that certain fundamental rights, including the right to freedom of expression and opinion and the right to seek and impart information, may be restricted to address the current health crisis as long as governments apply basic democratic principles and a series of safeguards, and the interference is lawful, limited in time, and not arbitrary. Governments, companies, NGOs, and individuals alike have a responsibility to do their part to mitigate the consequences of the COVID-19 health crisis and to show solidarity and respect for each other. In this paper, we provide recommendations for protecting freedom of expression and opinion and the right to impart and receive information to enable governments​ to fight the COVID-19 health crisis in a rights-respecting manner. There will be an aftermath to the COVID-19 outbreak and the measures governments put in place right now will determine what it will look like. The recommendations outlined below will help ensure that the rule of law, and the rights to freedom of expression and opinion, as well as the right to receive and to impart information, are protected throughout this crisis and in the future. Under no circumstances should any government allow people’s fundamental rights to fall victim to this pandemic.” 

In 2011 the UN Office of the High Commissioner for Human Rights organized expert workshops on the prohibition of incitement to national, racial or religious hatred. This document is the contribution from Florence Jaoko, Chairperson of the Kenya National Commission on Human Rights, to the workshop held in Nairobi. The paper "examines the legal framework, (international, regional, constitutional and legislative) that address these issues and the standards used to ensure a proper balance we will also examine other institutional frameworks such as policy and mechanisms for redress including judicial interventions. The background information has dealt with various regional mechanisms and other country specific situations; [Then it] deal[s] with the Kenyan Situation in light of international and regional conventions and decisions."

"Free Expression and Democracy takes on the assumption that limits on free expression will lead to authoritarianism or at least a weakening of democracy. That hypothesis is tested by an examination of issues involving expression and their treatment in countries included on The Economist's list of fully functioning democracies. Generally speaking, other countries allow prohibitions on hate speech, limits on third-party spending on elections, and the protection of children from media influences seen as harmful. Many ban Holocaust denial and the desecration of national symbols. Yet, these other countries all remain democratic, and most of those considered rank more highly than the United States on the democracy index. This book argues that while there may be other cultural values that call for more expansive protection of expression, that protection need not reach the level present in the United States in order to protect the democratic nature of a country."

“Besides being protected by the First Amendment, the right of students and faculty to express different ideas and opinions—even discomfiting ideas and opinions—is central to the academic mission of schools, colleges, and universities. Two familiar arguments articulated by John Stuart Mill underscore this point: First, the dynamic clash of contrary ideas offers the best prospect we have of arriving at the “whole truth” about any complex subject. Second, unless it is subject to periodic questioning and critique, any established and received bit of wisdom “will be held in the manner of a prejudice with little comprehension or feeling of its rational grounds.” These arguments notwithstanding, heated debates persist as to the proper bounds of free speech in educational institutions dedicated to open inquiry and the examination of multiple viewpoints. Two distinct positions provide us with a useful framework for analyzing many of these debates. The libertarian position rejects regulation of campus speech—except in extreme cases of speech that invade the rights of individuals or small specific groups of people—while instead championing a maximally free marketplace of ideas. The liberal democratic position, however, proposes that, in the interest of scholarly objectivity and rational autonomy, verbal interaction that denigrates or stigmatizes others on account of ascriptive characteristics such as gender, race, ethnicity, religion, or sexual orientation should be constrained in higher education. Adherents to the libertarian position oppose the implementation of campus hate speech codes on the grounds that such codes violate First Amendment principles and are not an effective bulwark against prejudice, discrimination, and inequality. Adherents to the liberal democratic position support narrowly tailored speech codes that formally sanction slurs, “fighting words,” and the like, but they generally believe that most of the work of regulating abusive speech should occur through the informal enforcement of new “norms of civility” on campus. Although these two positions constitute a major fault line in debates over campus speech, they do not capture the range of standpoints taken by participants in the debates. To cite one noteworthy example, some scholars, in the name of what they refer to as “an affirmative action pedagogy,” call for broader restrictions on speech (particularly classroom speech) than either the libertarian or liberal democratic positions endorse.”

The report “provides a new perspective on the social and political dynamics behind the threats to expression. It develops a conceptual framework on the ‘ecology of freedom of expression’ for discussing the broad context of policy and practice that should be taken into consideration in discussions of this issue.”

In 2011 the UN Office of the High Commissioner for Human Rights organized expert workshops on the prohibition of incitement to national, racial or religious hatred. This document is Paula Martins' contribution to the expert meeting held in Santiago, Chile.

Here you will find the Syllabus for the MOOC 'Freedom of Expression in the Age of Globalization' created by Columbia Global Freedom of Expression. This course will examine the norms, institutions and forces that altogether have founded a global system of protection for freedom of expression and information. This Advanced  Course will focus on the multiple challenges brought about by the technology revolution of the last two decades. On one hand, it has given the world the means to realize its commitment to freedom of information without frontiers. Technology has shaped, reshaped, and radically transformed the production and distribution of information, profoundly impacting whole societies and greatly influencing, if not defining, information and communication. On the other hand, it has also precipitated or heightened a range of normative, regulatory and political issues related to the protection of freedom of expression, on and off line. This course will examine the complex, and often awkward, interplay of global information flows with national jurisdiction and state sovereignty, and what it means for the realization of a borderless vision for the right to freedom of expression.

“This series of Briefing Notes is designed to give readers an understanding of the key international legal standards that apply in the context of freedom of expression. They are aimed at an audience which does not necessarily have a deep understanding of freedom of expression issues, but they also aim to be of interest and relevance to more sophisticated freedom of expression observers and practitioners. Thus, while the Briefing Notes are designed to be broadly accessible, they also provide readers with fairly in-depth knowledge about freedom of expression issues. Each individual Briefing Note addresses a different thematic freedom of expression issue. The first, perhaps predictably, is titled Freedom of Expression as a Human Right, while the second looks at the permissible scope of restrictions on freedom of expression under international law. Several of the Briefing Notes focus on different areas of media regulation, including print, broadcast and public service media, journalists, media diversity and independent regulation. This reflects the central role media regulation plays both in terms of guaranteeing freedom of expression and in the legal frameworks found in democracies relating to freedom of expression. There are also Briefing Notes on both criminal and civil restrictions on freedom of expression, as well as on the right to information (or freedom of information) and digital rights. In addition to providing substantive guidance in the relevant thematic area, the Briefing Notes contain a number of pithy quotes from leading sources. The idea is to provide readers with quick access to ‘quotable quotes’ for possible reuse in their work. Each Note also contains a section at the end on further resources, for readers who want to probe the subject more deeply.”

"The Freedom of Expression Toolkit is UNESCO’s contribution to freedom of expression and it is written with upper high school students in mind. The Toolkit covers the major concepts and issues and it is written in an easy to understand, conversational manner.” Among other, it aims to answer the following questions: What is freedom of Expression and why does it matter? When is freedom of expression at risk? What are the conditions needed for freedom of expression? What is the special role of journalism and journalists in freedom of expression? What about freedom of expression online? What are the limitations?"