Freedom of Expression

Freedom of expression is a fundamental human right that enables individuals to openly share their thoughts, opinions, and ideas without fear of censorship or punishment. A cornerstone of democratic societies, it plays a crucial role in fostering debate, forming public opinion, and promoting progress. In this article, we will delve into the meaning of freedom of expression, explore its legal protections in the UK and under the European Convention on Human Rights (ECHR), and review both historical and contemporary examples. We will also examine the impact of social media on freedom of expression and discuss the challenges and limitations that may arise within this ever-evolving digital landscape.

Defining Freedom of Expression Meaning

Freedom of expression is a fundamental human right that allows individuals to articulate their opinions, ideas, and thoughts without fear of censorship, punishment, or reprisal. This freedom is vital for the development of a healthy and democratic society, as it fosters openness and transparency in decision-making, enables citizens to hold their governments accountable, and stimulates innovative thinking and cultural diversity.

Freedom of expression vs freedom of speech: Key differences

Though often used interchangeably, freedom of expression and freedom of speech are not entirely synonymous. Understanding the distinction between the two concepts is essential for comprehending their respective implications and applications in the context of the law.

• Freedom of expression is a broader term that encompasses not only the spoken word but also other forms of communication, such as writing, art, music, and dance. Freedom of speech, on the other hand, refers specifically to the act of verbal communication or expression.
• Freedom of expression also includes the right to seek, receive, and impart information and ideas, whereas freedom of speech primarily pertains to the articulation of opinions or ideas.
• While freedom of speech can be limited to national boundaries, freedom of expression seeks to protect the exchange of information and ideas across frontiers, thus promoting the free flow of communication globally.

The role of freedom of expression in human rights law

Freedom of expression is a fundamental right enshrined in various international and regional human rights instruments, which serve as the legal framework for its protection and promotion.

These instruments outline the scope and limitations of freedom of expression, emphasizing its centrality to the realisation of other human rights and fundamental freedoms, such as the right to education, cultural rights, and the right to participate in public affairs. Moreover, they stress the importance of ensuring that restrictions on freedom of expression are implemented in accordance with the rule of law and do not undermine the very essence of this right.

By acknowledging and protecting freedom of expression, human rights law seeks to create an environment conducive to the open exchange of ideas, the strengthening of democratic institutions, and the development of diverse and inclusive societies.

Freedom of Expression in the UK

In the United Kingdom, freedom of expression is a fundamental right that has been safeguarded through various legal instruments at both national and international levels. The primary source of protection for freedom of expression in the UK is the Human Rights Act 1998, which incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic law.

The key provisions protecting freedom of expression in the UK are as follows:

• Article 10 of the ECHR: This provision guarantees the right to freedom of expression for everyone within the jurisdiction of the UK and encompasses the freedom to communicate ideas, opinions, and information without interference from public authorities.
• Section 12 of the Human Rights Act 1998: This section emphasises the importance of freedom of expression, particularly with regard to the media and artistic expression, and requires the courts to have particular regard to this right when considering any restrictions.
• Common law: The UK also has a strong tradition of safeguarding freedom of expression through its common law system, which recognises the principle of free speech as a fundamental aspect of a democratic society.

Despite these protections, the right to freedom of expression in the UK is not absolute and is subject to certain qualifications and restrictions. These limitations aim to strike a balance between the protection of individual rights and the wider interests of society, such as national security, public health, and the prevention of crime.

Important UK legislation that imposes restrictions on freedom of expression includes:

Challenges and limitations to freedom of expression in the UK

While the UK has a strong commitment to protecting freedom of expression, there are several contemporary challenges and issues that have raised concerns about the scope and application of this right within the country. Some of these challenges include:

1. Counter-terrorism legislation: Laws enacted to combat terrorism, such as the Terrorism Act 2000 and the Counter-Terrorism and Border Security Act 2019, have been criticised for their potential to restrict legitimate forms of expression and dissent. For example, the widely defined offences of encouraging terrorism or disseminating terrorist publications have raised concerns over their compatibility with Article 10 of the ECHR.
2. Hate speech laws: The UK has enacted several laws to combat hate speech and discrimination, including the Racial and Religious Hatred Act 2006, which criminalises the incitement of hatred against persons on religious grounds, and the Criminal Justice and Immigration Act 2008, which extends similar provisions to cover hatred on the grounds of sexual orientation. Critics argue that these laws may be overly broad and stifle legitimate discourse and debate on sensitive topics.
3. Online censorship: The increasing prevalence of online communication has raised new challenges relating to freedom of expression, particularly concerning issues such as disinformation, cyberbullying, and privacy. The draft Online Safety Bill seeks to address these issues by imposing a duty of care on online platforms to protect their users from harmful content. However, there are concerns that the legislation may unduly restrict lawful speech and lead to overzealous content moderation by private companies.
4. Media regulation and defamation: The UK's defamation and media laws, such as the aforementioned Defamation Act 2013, have been criticised for their impact on freedom of expression, particularly in relation to investigative journalism and reporting on matters of public interest. Despite reforms introduced by the Leveson Inquiry, concerns remain over access to justice for victims of press abuses and the potential chilling effect of costly defamation litigation on free speech.

Overall, the UK has a robust framework of legal protections for freedom of expression, but continues to face challenges in striking the appropriate balance between safeguarding this fundamental right and addressing legitimate social concerns. Ongoing debates and discussions around these issues demonstrate the importance of having a detailed understanding of the legal framework and its implications for the exercise of freedom of expression in the country.

Freedom of Expression under the European Convention on Human Rights (ECHR)

Article 10 of the European Convention on Human Rights (ECHR) establishes the right to freedom of expression as a fundamental human right, laying the groundwork for the protection and promotion of free speech in member states of the Council of Europe. The text of Article 10 is as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10 encompasses various facets of freedom of expression, including the right to hold opinions, receive information and ideas, and express oneself through any medium, such as print, broadcast, or digital platforms. The ECHR places particular emphasis on the importance of allowing for the free flow of information across borders, underscoring the significance of international communication in fostering a democratic society.

However, freedom of expression under Article 10 is not an absolute right. As highlighted in paragraph 2 of the article, states can impose restrictions on the exercise of freedom of expression, as long as these limitations are:

• Prescribed by law
• Necessary in a democratic society
• Proportional to their objectives
• Justified by specific legitimate aims, such as national security, public safety, or the protection of the rights of others

Balancing other rights with freedom of expression under the ECHR

While Article 10 guarantees the right to freedom of expression, the ECHR recognizes that it must be balanced against other rights and freedoms it protects. Contouring cases have given rise to the "margin of appreciation" doctrine, which allows states a certain degree of discretion in interpreting and implementing the rights enshrined in the Convention, acknowledging the importance of cultural, historical, and social differences between States.

Some key rights that may need to be balanced against freedom of expression include:

1. Article 8 (right to respect for private and family life): The protection of an individual's privacy and personal relationships has sometimes led to a clash with freedom of expression, particularly where the media is involved. The European Court of Human Rights (ECtHR) has consistently striven to strike a fair balance between these two rights, considering factors such as the public interest, the nature of the information, and the manner in which it was obtained.
2. Article 9 (freedom of thought, conscience, and religion): Freedom of expression can sometimes conflict with an individual's right to manifest their religion, particularly in cases involving hate speech or religious defamation. The ECtHR has sought to balance these rights by assessing the potential impact on public order, pluralism, and the values underpinning a democratic society.
3. Article 14 (prohibition of discrimination): Instances of discriminatory or prejudicial speech may necessitate restrictions on freedom of expression to safeguard the rights of marginalized or vulnerable groups. In such cases, the ECtHR will evaluate whether the restriction is essential for a democratic society and whether it is proportionate to the legitimate aim pursued.

In all cases, the ECtHR carefully scrutinizes the justifications provided by States for limiting freedom of expression, ensuring that any restrictions are in line with the spirit and letter of the Convention.

Notable freedom of expression cases in the European Court of Human Rights

Over the years, the European Court of Human Rights has heard numerous complaints pertaining to freedom of expression, which shaped the understanding interpretation of Article 10 and its relationship with other rights. Some notable cases include:

1. Handyside v. United Kingdom (1976): In this landmark case, the Court affirmed that freedom of expression extends not only to information and ideas that are favourable received but also to those that offend, shock, or disturb. Here, the Court made it clear that freedom of expression is essential for the proper functioning of a democratic society.
2. Jersild v. Denmark (1994): This case underpinned the importance of protection of freedom of expression in the context of reporting and journalism. The Court ruled that convicting a journalist for airing an interview with racist individuals violated Article 10, as the journalist had aimed to inform the public about a matter of public interest.
3. Delfi AS v. Estonia (2015): The case compared the liability of an internet news portal for defamatory comments made by its readers and clarified the circumstances in which such liability may be imposed without violating Article 10. The Court ruled that under the given conditions, the restriction of the news portal's freedom of expression was proportionate and justified.
4. E.S. v. Austria (2018): This decision explored the balance between freedom of expression and protection of religious feelings. The Court held that convicting an individual for making derogatory statements about the Prophet Muhammad did not violate Article 10, as it aimed in preserving religious peace in Austria.

These cases demonstrate the ongoing evolution of the scope of freedom of expression under the ECHR and emphasize the need to strike a balance between safeguarding this right and protecting other interests and rights in a democratic society.

Freedom of Expression Examples

Historically, the case of John Stuart Mill, a British philosopher and political economist, serves as a prominent example of freedom of expression advocacy. Mill's influential work, On Liberty (1859), advanced a passionate defence of individual liberty and freedom of speech. He argued that constructive debates and diverse opinions are essential for discovering the truth and promoting social progress. Mill's argument is based on the "harm principle," which states that the only justification for restricting someone's liberty, including their freedom of expression, is to prevent harm to others.

Mill's work has had a profound impact on modern liberal democracies and has informed the development of freedom of expression protections in various legal systems. Some of the key concepts derived from Mill's defence of freedom of speech include:

• The necessity of open debate for discovering truth
• The importance of individual autonomy and self-expression
• The potential for censorship to stifle creativity and innovation
• The value of pluralism and diversity of opinions in a democratic society

Contemporary cases demonstrating freedom of expression

Several contemporary cases highlight the importance and challenges surrounding freedom of expression in modern societies. These cases often involve conflicts between freedom of speech and other rights or interests, such as national security, public order, privacy, or protection against hate speech and discrimination. Some notable contemporary cases include:

1. Charlie Hebdo: The French satirical magazine Charlie Hebdo faced international attention following a deadly attack on its office in 2015 by extremists, in response to controversial cartoons depicting religious figures. The attack ignited a global debate on the limits of freedom of speech and the role of satire in a democratic society.
2. Julian Assange and WikiLeaks: The case of Julian Assange, the founder of WikiLeaks, raises important questions about freedom of expression, government transparency, and the protection of whistleblowers. Assange is accused of publishing thousands of classified documents, sparking international legal and ethical debates surrounding the limits of journalistic freedom and the potential harms posed by unauthorized disclosures.
3. Cambridge Analytica Scandal: The data privacy scandal involving Cambridge Analytica highlighted the relationship between freedom of expression and the right to privacy in the age of digital communication. The company's unauthorized access to the personal data of millions of Facebook users, and its use to influence political campaigns, sparked debates about the role and regulation of social media platforms in safeguarding both personal privacy and freedom of expression.
4. Count Dankula: The case of Markus Meechan, a British YouTuber known as Count Dankula, involved the criminal prosecution of a man who posted a satirical video online that potentially promoted hate speech. Meechan was found guilty of a hate crime, raising questions about the boundaries of freedom of speech and the criminalization of offensive content.

Social Media Impact on Freedom of Expression

Social media platforms have become a crucial means of communication, playing a significant role in shaping public discourse and influencing opinions in the modern world. The growing prevalence of social media as a medium for expressing ideas has led to both opportunities and challenges for freedom of expression. Some of these aspects include:

• Amplification of voices: Social media has enabled individuals, including marginalized groups, to share their opinions and experiences with a broader audience, thereby fostering dialogue and breaking down traditional barriers associated with mainstream media outlets.
• Access to information: Social media platforms have become vital sources of information, covering a wide range of topics and perspectives. Users can share and access news, public debates, and key events in real-time, promoting a more informed and engaged citizenry.
• Echo chambers and filter bubbles: The personalisation of online content through algorithms can create echo chambers and filter bubbles, where users predominantly engage with content that supports their existing beliefs and opinions. This can result in ideological polarisation, limiting exposure to diverse perspectives and fostering groupthink.
• Disinformation and "fake news": The rapid and uncontrolled spread of disinformation and misleading content on social media platforms can undermine the very fabric of democratic societies by sowing confusion, promoting conspiracy theories, or fostering distrust in public institutions.
• Harassment and hate speech: Social media platforms can be used to disseminate offensive or hateful messages, resulting in the intimidation or silencing of certain individuals or groups. Balancing the need to protect freedom of expression while preventing harm caused by harassment or hate speech can be challenging, particularly as social media platforms continue to grapple with content moderation.
• Privacy concerns: The collection and use of personal data by social media platforms can have implications for both privacy and freedom of expression, as users may be reluctant to share certain information or opinions for fear of surveillance, profiling, or targeted advertising.

Social media's impact on freedom of expression reveals the complexity of protecting and promoting this fundamental right in the digital era. Upcoming challenges involve creating effective legal frameworks, policies, and industry practices that strike a balance between safeguarding freedom of expression and addressing the issues that arise with new forms of communication.