Freedom of Expression

Freedom of expression is any act of seeking, receiving, and imparting information or ideas, regardless of the medium used. Freedom of expression can be both protected and limited by regulations or statutes.

To ensure media freedom and freedom of expression, legislative frameworks should safeguard editorial independence and operational autonomy of the media, rights to privacy and data protection.

Depending on the jurisdiction, shield laws provide journalists with an complete or qualified privilege to protect their sources, both human or documents. Positive obligations exist to guarantee the safety of journalists (more on this on the Safety theme pages).

Jurisprudence in Council of Europe countries relating to the right to Freedom of Expression has been evolving in light of technological evolution and the rise of the platform economy where social media and search companies have developed into becoming key players in the freedom of expression ecosystem, both internationally and nationally.

Freedom of expression is not an absolute right and restrictions may apply, although there are differences between different jurisdictions. In comparison to Europe, restrictions on free speech are very limited in the USA. This means that the use of offensive words and phrases to convey political messages is allowed, even racist and extremist views as long as they do not create an immediate and present danger. This leaves certain vulnerable or minority groups relatively unprotected to hate speech as compared to other parts of the worlds. This protection follows from Article 20(2) of the ICCPR which states that:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. See also General Comment No. 11 of the Human Rights Council

In general, following from Article 19 of the ICCPR, restrictions are applied to the reputation of others and defamation, hate speech and national security, but depending on the country, these restrictions can be either laid down in civil law or in criminal law. The latter often leads to censorship or infringements on basic human rights.

The right to freedom of expression can only be limited by way of a three part test:

  • Step 1: Any restriction on a right must be prescribed by law
  • Step 2: The restriction must serve one of the prescribed purposes listed in the text of the human rights instrument
  • Step 3: The restriction must be necessary to achieve the prescribed purpose