Scope of Freedom of Expression

This is a a handbook for legal practitioners on protecting the right to freedom of erxpression under the European Convention on Human Rights. The chapters  are: 1: General consideration on Article 10; 2: Duties under Article 10; 3 Unprotected speech-hate, speech, incitement to violence; 4: The system of restrictions within the exercise of the right to freedom of expression; 5: Limitations due to "public" reasons; 6: Freedom of expression and reputation; 7: Rights of others; 8: Freedom of expression and the media; 9: Freedom of expression and new technologies.

 Chapter II of the report  (A/HRC/7/14) "presents an overall review of the main issues addressed by the Special Rapporteur throughout his mandate, specifically in the realms of the right of access to information, safety and protection of media professionals, legal restrictions on freedom of opinion and expression as well as the impact of freedom of expression on the realization of other human rights."

Chapter III OF THE REPORT (A/HRC/14/23) "expands on four main themes: (a) general considerations on the freedom of opinion and expression; (b) freedom of expression for groups in need of particular attention and the role of freedom of expression in combating discrimination; (c) permissable restrictions and limitations on freedom of the expression; and (d) protection of journalists and freedom of the press. Chapter IV presents the Special Rapporteur’s conclusions and general recommendations concerning these main subjects.” 

The report (A/71/373) “addresses contemporary challenges to freedom of expression. He assesses trends relating to the permissible restrictions laid out in article 19 (3) of the International Covenant on Civil and Political Rights, and concludes with recommendations that the United Nations, States and civil society may take to promote and protect freedom of opinion and expression.”

“It is universally acknowledged that the right to freedom of expression is a foundational human right of the greatest importance. At the same time, it is also universally recognized that it is not an absolute right, and every democracy has developed some system of limitations on freedom of expression. International law does provide for a general three-part test for assessing restrictions on freedom of expression, and this test has been elaborated on in numerous judgments by international courts tasked with oversight of international human rights treaties. National courts, often interpreting constitutional guarantees which are based on or are similar to international guarantees, have also helped elaborate on the precise meaning of the test for restrictions on freedom of expression. Assessing restrictions on freedom of expression, however, is an extremely complex matter. There are several reasons for this, including that the primary guarantee of freedom of expression is itself multifaceted, that the grounds for restricting freedom of expression or interests which restrictions aim to protect are numerous and that the contexts in which the need for restrictions is asserted are almost limitless. This Paper provides an overview of the key issues relating to restrictions on freedom of expression, describing how international and in some cases national courts have approached them. It also highlights some problem areas or issues which remain unclear or which lack sufficient elaboration. For these, it poses questions which might be considered by participants at the two meetings for which the Paper serves as background material.”

Chapter 12 of Human Rights in the Administration of Justice, a manual and facilitator’s guide developed by the UN OHCHR in collaboration with the IBA, pertains to the right to freedom of thought, conscience, religion, opinion, expression, association and assembly. The learning objectives of this chapter are: “1.) To familiarize the participants with some other key rights, namely freedom of thought, conscience, religion, opinion, expression, association and assembly, and their importance in a society that is respectful of human rights in general; 2.) To illustrate how these freedoms, as well as the limitations attached to the exercise of most of them, are interpreted by the international monitoring bodies; 3.) To explain the role of judges, prosecutors and lawyers in safeguarding the freedoms dealt with in this chapter.”

As Open Society Foundations summarizes this incisive and timely report, “This publication from the Open Society European Policy Institute, the Brussels-based policy and advocacy branch of the Open Society Foundations network, and authored by Professor Laurent Pech, examines whether it is possible to use the chilling effect to promote and protect democracy, rule of law, and fundamental rights. In its negative form, the chilling effect is used by some governments to create a climate of self-censorship that deters democratic actors such as journalists, advocates and judges from speaking out. To stop autocratic-minded authorities from achieving their goal of inspiring self-censorship among democratic actors, this report recommends systemically integrating the concept of chilling effect into the EU’s infringement framework of analysis. This will establish a foundation to better allow the EU to protect freedom of association, judicial independence, and media freedom.”

“The objective of this publication is to present inter-American jurisprudence that defines the scope and content of this right in a systematic and updated way. Among the most important topics it highlights: the importance, function, and characteristics of the right to freedom of expression, as well as the types of speech protected; the prohibition of censorship and indirect restrictions; the protection of journalists and social communications media; the exercise of freedom of expression by public officials; and freedom of expression in the area of electoral processes.”

"Freedom of expression is a fundamental right, indispensable in democratic societies. However, this right is not an absolute right, and may be lawfully restricted according to certain principles and conditions. Under international human rights law, and specifically, article 19 of the International Covenant on Civil and Political Rights (ICCPR), the three-part test determines whether a restriction on freedom of expression is legitimate."

“This guide was designed as a basic and synthetic input to help judges and legal practitioners across the Americas who must apply international (especially inter-American) standards that enshrine and protect the fundamental right to freedom of expression.” Available only in Spanish.