Freedom of Expression

1. Freedom of Expression

2. Introduction/ What use for free expression • “Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They constitute the foundation stone for every free and democratic society.” HR Committee, General Comment 34 • In Anglo-American tradition, freedom of expression is to invite dispute and debate. Freedom of expression best serves its purpose when it induces a condition of unrest, creates dissatisfaction with status quo or even stirs people to anger. Terminiellov City of Chicago 337 US 1, 4 (1949) • Freedom of expression creates a so called ‘market place of ideas’ in which the ‘truth’ or better ideas, thoughts and views will survive. Abrams v. U.S. 616 (1919). • Free expression is necessary for creation of a pluralistic democracies and ensuring fundamental human rights. Lingensv Austria (ECtHR, 1986).

3. Then… If we define politics as; “public contestation, primarily by organized and unequal social powers, over access to the resources available to the public authorities of the collectivity.”(Sheldon Wolin, Fugitive democracy, 1:1 Constellation, 1994) The political dimension of this freedom becomes clear, as it provides the necessary ground for public dispute, contestation and deliberation.

4. Expression • Webster dictionary defines ‘Expression’ as: An act, process or instance of representing in a medium. • Or; something that manifests, embodies, or symbolizes something else. Expression therefore can be said to be pressing out an inner state of being, thoughts or feelings. • Or; It is symbolization, materialization or vocalization of an affect, feeling or mode of being. ( so a haircut, clothing or a way of walking and social performance are also forms of expression).

5. Representation of the right in legal instruments • Article 19 UDHR, Art 19 ICCPR, Art 10 ECHR, Art 13 ACHR, Art 9 ACHPR Article 19 ICCPR: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his [her]choice ...

6. Scope of Article 19 • General Comment 34 (2011): Article 19 encompasses rights and freedoms and not one single right. - Paragraph 1 refers to freedom of opinion. “Everyone shall have the right to hold opinions without interference.” - In turn paragraph 2, includes freedom of expression and right of access to information.

7. Freedom of Opinion 1- Everyone shall have the right to hold opinions without interference. • Although not mentioned in Article 4 of ICCPR, it is not possible to derogate from paragraph (1) of Article 19. • ‘Freedom of opinion’ is a right that the covenant allows no exception or restriction. (Limitation clauses in paragraph 3 of Article 19 does not apply to paragraph 1 of the Article) • It includes all forms of opinions , among others, political, historic, scientific moral or religious opinion. • It includes holding/not holding an opinion, expressing/not expressing one’s opinion.

8. Scope of Article 19 • “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” • Freedom to seek and receive information is to be read as articulation of right to access to information. • Information referred in this Article is any information held by public bodies, be it national, local or regional. • Filtering outputs, censoring and blocking access, by sending radio wave, static, jamming, monopoly of media

9. Scope of Free Expression • “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds,…” -Ballantyne, Davidson and McIntyre v. Canada (HR Committee) : “ … Any subjective ideas and opinions capable of transmission to others…” ‘All kinds’ denotes a large scope of this Article, which includes expression and receipt of communication every form of idea and opinion like; Highly critical and political discourse, any form of commentary, discussion on human rights, journalism, artistic expression, teaching, religious discourse, even commercial advertisements, blasphemy, pornography, offensive expressions, etc. (as long as they meet the limitation clause on para. 3 of the Article 19 and Article 20)

10. Scope of Free Expression • “Everyone shall have the right to freedom of expression; … either orally, in writing or in print, in the form of art, or through any other media of his choice.” Any form and any means; • Sign language • Image, posters, paintings… • Banners • Dress • All forms of audio-visual as well as electronic and internet-based modes of expression, etc.

11. Limits of Free Expression 3. “The exercise of the rights provided for in paragraph 2 of this article … may therefore be subject to certain restrictions…” In order to be legitimized the interferences made must comply with the good old three level test of: • Provided by law Manfred Nowak: formal parliamentary legislation or an equivalent unwritten norm of common law, if it has criteria of clarity, certainty and predictability. See CCPR Commentary, p.460. • Necessary for attaining listed purposes • (legitimate grounds) Respect of the rights or reputations of others, National security, Public order, Public health or morals Art 20: Prohibition of propaganda of war and Advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

12. Respect of rights and reputation of others • It can include prohibition of insults, defamation, vilification based on untrue assertions. • however, due to the political function of free expression, regional and international monitory systems have considered a broad scope of freedom, to an extent that highly critical and offensive articulations are, at times, permitted. L.J. Sedley (Redmond-Bate v DPP/1990): “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided that it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

13. Respect of rights and reputation of others • Bodrozic v Serbia and Montenegro, HRComm, 118/2003. The protection of uninhibited expression is high in regard to public debates in democratic society concerning public and political figure or institutions. See also: Paraga v Croatia, HRComm, 727/1996. • Lingensv Austria, ECtHR, 1986. Disturbing, shocking and offensive information or ideas. “The limits of acceptable criticism are wider as regards a politician as such than as regards a private individual. Since politicians inevitably and knowingly lay themselves open to close scrutiny of their deeds and words by both journalist and public, therefore the much show greater degree of tolerance.”

14. Respect of rights and reputation of others • Scharsachand News Verlagsgesellschaft mbH v. Austria(ECtHR, 2004) • Value judgment of public figures, Calling a right wing politician a ‘closet Nazi’. • There is even a greater protection when the political expression goes beyond an individual politician and addresses the government as a whole. Castells v Spain (ECtHR, 1992). • In political cases the rights and reputation of others are weighed against the interests of open discussion on political issues. While in cases of private individuals it’s a balance between article 19 and 17, private life and privacy.

15. However… • Lindon, Otchakovsky-Laurens and July v. France (ECtHR, 2007) • Jean-Marie Le Pen case: in a Novel –partly drawn on factual events- the leader of the National Front in France was described as the ‘chief of a gang of killers’, a ‘vampire who thrives on the bitterness of his electorate, but sometimes also on their blood.’ The author of the novel found guilty of defamation of Le Pen. The ECtHR found no violation of freedom of expression by 13-4 votes.

16. … • Respect for rights of others General comment 34: • ‘Rights’ refers to human rights in general terms of IHRL and not just the ICCPR. • ‘Others’ refers to individuals or members of a community. A community can be defined by faith, ethnicity, etc.

17. National Security • As a common draw-back clause, national security refers to serious cases of political or military threat to the entire nation.CCCPR commentary, Nowak. • M.A v Italy , HRComm, 117/1981: Committee decided that conviction of the applicants for attempting to re-establish the ‘fascist party’ was in accordance to limits of Article 19 (3), and therefore found no violation. • Treason laws and protection of official -especially military secrets – are matters of national security as well. How about whistle blowing on matters of grave concern? • the General comment 34 only touches on WB, it deems unacceptable prohibition of leaks in relation to commercial and banking secrets or matters of legitimate public interest that doesn’t harm national security. What does that mean?

18. Public health and Moral • Public health; deemed to have minor practical relevance in regard to freedom expression. e.g. restriction on advertisement of alcohol, tobacco, drugs etc can be justified by reference to this limitation. Or restriction on misleading publication on health related maters. • Public moral; it is rather an unsettling issue, there is always a considerable space of discretion left for states. Hertzberg v Finland (HRComm 61/1979). No violation. Handyside v UK (ECtHR, 1976). No violation. Muller v Austria (ECtHR, 1988). No violation. Open door and Dublin well woman v Ireland (ECtHR 1992), violation found.

19. Hate Speech • ‘Hate Speech’ can refer to different contexts e.g. Racial, sexual orientation, religious, Negationism, etc. • Prohibition of hate speech can be seen in Article 20 (2): “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” • Not mere blasphemous content or insult to a faith or religion is prohibited (GC 34).

20. Hate Speech • Holocaust denial - Faurisson v France, HRComm 550/1993 “Denial of holocaust is the principle vehicle for anti-Semitism.” • Garaudyv France, ECtHR 2003 Garaudy disputed the crimes against humanity happened in the WWII “denying crimes against humanity [was] one of the most serious forms of racial defamation of Jews and of incitement to hatred of them.”

21. Europe and Muslims • Feret v Belgium, ECtHR 2009 Parliament member of Belgium, distributed leaflets during election campaign stating: ‘Stand against Islamification of Belgium’, ‘Send non-European job-seekers home’ etc. the court found these sort of articulations amounting to racial hatred and incitement of such attitude. • Norwood v UK, ECtHR, 2004 The applicant displayed a poster on his window, the poster supplied by BNP, stating under the burning twin towers; ‘Islam out of Britain, Protect the British people’ Court: This was a general attack against members of a religious community. Linking a whole community to a terrorist act . Mr. Norwood could not seek protection under the ECHR.

22. Europe and Muslims • LeylaSahin v Turkey, ECtHR 2005 The Court found no violation of rights and freedoms of LeylaSahin, in regard to a legislation that banned her from wearing headscarf in her University. The court also repeated its old statement in Dahlabv Switzerland that : “Head scarf is a powerful external religious symbol.” • Dogru v France, ECtHR 2009 The applicants were expelled from school because she refused to take of her headscarf during physical and sport classes. • Lautsi v Italy, ECtHR 2009 and 2011 In its last and final decision in regard to whether hanging crucifix in classrooms in Italy is against principle of pluralism, and all the above mentioned values., the court states that ‘a crucifix on a wall is an essentially passive symbol’. Para 72

23. Europe and Muslims In Sahin Case, ECtHR found no violation by relating to : • protection of women rights and equality • Right and freedom of others! And • Preservation of public order

24. Public order of a society • Deliberation of the French parliament: • It is a matter of national identity (performative aspect of expression as means of production of identity) • Against French culture • The total number of women wearing veil in France is around 2,000, out of a total French population of adult Muslim women of about 1,500,000. • Behind this law is fear of the ‘other’