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. 

"Government officials in various parts of the world use defamation to silence critics, but defamation liability may curtail freedom of expression on topics of public interest and undermine human rights generally. Article 19 of the International Covenant on Civil and Political Rights guarantees freedom of expression unless a state can show need to protect individual reputation and acts proportionally. In its adjudication of complaints for violations of Article 19, and in its General Comment 34, the United Nations Human Rights Committee has crafted the principle that defamation liability may not be imposed if an erroneous statement about a public official was made in “error but without malice.” Although soft law, General Comment 34 represents the committee's most compelling articulation of the values animating freedom of expression in international human rights law, and chief among the values is the role played by free expression to promote realization of all human rights."

“In the years since 9/11, international security discourse has heightened concerns around extremism, positioning this as the key threat that States need to address in order to prevent and combat terrorism. Politically, enactment of domestic legislation curtailing extremist expressions has been internationally authorised and encouraged and in May 2016 the United Kingdom (‘UK’), spearheading a liberal State trend towards rights-restrictive approaches to extremism, announced its intention to enact legislation imposing a range of civil sanctions on those publicly expressing extremist views. But laws such as this restrict the core democratic right to freedom of expression and so must comply with the tripartite requirements for restrictions enshrined in Article 19(3) of the International Covenant on Civil and Political Rights (‘ICCPR’) to be legitimate. Using the UK to dynamically exemplify the issues, this paper assesses the manner in which the laws curtailing extremist expressions comply with international human rights law.”

“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.”