What is the role of freedom of speech in a democratic society and where are its limits?

 The right to freedom of speech as one of the basic human rights is enshrined in main international human rights documents. Freedom of speech (synonym Freedom of expression [1]) is the inseparable element of a democratic society. Whether the society is democratic or not can be defined by the factor of independent press and mass media.

Freedom of speech and expression may bring to the control over the state authorities exercised by the society and to the maintenance of the self-controlled society, which is the demand of democracy. The definition of a self-controlled society means that it itself shall make own decisions. And the society can do this in case it is informed in aggregate with the open exchange of opinions. Abraham Lincoln, generally, expressed this conception as follows: “Let the people be aware of the facts, and the country will be calm”. [2] Hence, mass media as an instrument for the exercising of freedom of speech and expression gains importance for a democratic society.

Main functions of mass media are to cover the events, gather and spread information and finally to control the activities of state authorities. It used to be said that the mass media is the fourth power after the Executive, Legislative and Judiciary. The society, in its turn, may exercise control over the authorities only in case it is aware of its actions and if necessary can intervene; for instance through voting during the elections.

In order to specify the role of freedom of speech and expression in a democratic society, it is necessary to show the demands of democracy addressed to mass media:

Press shall criticize the authorities when state officials and politicians make mistakes;

news shall stimulate criticizing attitude towards the political course of the authorities;

news and entertaining programs shall be defined according to taste of audience”.[ 3]

If we have the opposite of the above mentioned we will have to deal with authoritarian regime.

Mass media is the best instrument for the society to exercise its right to freedom of expression. However, the same society can enjoy freedom of speech and expression at the same time it can infringe this right. So, another issue arises: where are the limits of freedom of speech? 

Article 19 of the Universal Declaration of Human Rights (UDHR) provides: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."[ 4]

Article 10 of the European Convention on Human Rights (ECHR) provides: “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”.[ 5]

Another international instrument -International Covenant on Civil and Political Rights (ICCPR) provides: “Everyone shall have the right to hold opinions without interference; 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”.[ 6]

All these and many other international documents clearly guarantee the right to freedom of speech and expression. However, there is no freedom which is absolute and unlimited. All these international documents provide restrictions and respect for these rights.

According to ICCPR there are two key categories of restrictions that limit freedom of expression:

 for respect of the rights or reputations of others;

 for the protection of national security or of public order (ordre public), or of public health or morals.[ 7]

These restrictions shall only be such as are provided by law and are necessary.

The ECHR broadly and more specifically defines all possible restrictions. According to Article 10 of the ECHR the exercise of the right to freedom of expression 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 the rights of others;

for preventing the disclosure of information received in confidence; 

for maintaining the authority and impartiality of the judiciary.[ 8]

There is no other law defining so many restrictions as the ECHR does. Yet, the limitation of freedoms shall satisfy two key preconditions: statute-established and necessity in a democratic society.[ 9] The European Court of Human Rights (ECtHR) - the guardian of the Convention- strictly interprets these requirements.

Therefore, freedom of expression is a very “sensitive” right, which shall respect certain restrictions, which as well shall be protected from the government intention and other influential persons to hide criticism addressed to them.  

In any case, it’s worth mentioning that freedom supposes also responsibility. The offence, shock of someone, these all are also considered to be speech, but not protected speech like an irresponsible speech. Unrestricted freedoms can lead to the violation of other human rights, for instance infringement of public health and morals. [15] [16]         

 

The ECtHR finds that even if the speech shocks or offends it can be protected speech, defamation of a public official, well-known celebrity is often a protected speech because for a democracy it is important to discuss public matters and to have alternative opinions.

In 1986 the ECtHR in the case of Lingens v Austria[17] decided that a politician should take more criticism than ordinary people, and can not make the journalist not to criticize him referring to the necessity to protect his reputation. Consequently, libel laws which allow the prosecution of journalists who criticize public personalities shall be balanced with freedom of press.

 

Unrestricted freedoms lead to more global accidents, for instance when they present threat or danger for the national security or for public order and public safety. According to the ICCPR,

“Any propaganda for war shall be prohibited by law;

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”.[ 18]

 Therefore, mass media bears the part of responsibility for the war in former Yugoslavia, as they propagandized war and stirred up hatred and ethnic purges.[19]

Programs of “Radio Mille Collines” had a crucial role in events which led to violence in Rwanda in 1994; as a result more than one million people were killed. The radio station broadcast appeals to do violence.[20]

Hence, once again it is worth mentioning that freedoms suppose responsibility and restrictions. But, these restrictions shall be grounded by legitimate reasons, which shall be examined by courts.

Therefore, Freedom of speech constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development. The role of freedom of speech in a democratic society is the guarantee of control through mass media as the fourth power which is the instrument to exercise freedom of speech. And the society, in its turn, can control the authorities in case they are aware of their activities.

The Universal Declaration of Human Rights, International Conventions, Constitutions and laws of the democratic states guarantee the right to freedom of speech and expression, which also provide restrictions and respect for these rights prescribed by law, as there is no freedom which is absolute and unlimited. Yes, it is necessary to exercise freedoms in order to have a democratic society, but their limitations are also needed for the maintenance of the democratic society. And the most important in this issue is that the limits of freedom of speech correspond to the two key preconditions: necessity in a democratic society and statute-established, as the rule of law is the basis for democracy.

 

 

 

 

 

 

Footnotes:

[1] The synonymous term freedom of expression is sometimes used to indicate not only freedom of verbal speech but any act of seeking, receiving and imparting information or ideas, regardless of the medium used, known in United States law as "symbolic speech": available at: http://en.wikipedia.org/wiki/Freedom_of_speech.

 

[2]  see Independent press: Rights and Obligations, “The Role of Mass Media in Democratic Society”  available at http://www.infousa.ru/media/krimsky_rus.htm

[3]  Graber, Doris A.1993, P. 22.

[4]  see The UDHR (1948), article 19.

[5]  see The ECHR (1950),  article 10, paragraph 1.

[6]   ICCPR (1966), article 19, paragraph 1; 2.

[7]  ICCPR (1966), article 19, paragraph 3.

 

[8] The ECHR (1950), article 10, paragraph 2.

 

[9]  See the discussion on limitation of freedoms in detail in “Freedom of Speech and Freedom of Mass Media” material, p 279.

 

[15] see  the case of Handyside v. United Kingdom, Application no. 5493/72, Judgment, Strastbourg, 7 December 1976

 

[16] Mr. Richard Handyside, proprietor of "Stage 1" publishers, purchased British rights of "The little red schoolbook", written by S. Hansen and J. Jensen and published, as of 1976, in European and non-European countries. Its chapter on Pupils contained a twenty-six page section concerning "Sex”.He also placed advertisements for the book. The book became subject of extensive press comment.

[17] see the case of Lingens v. Austria, Application no. 9815/82, Judgment, Strasbourg, 8 July 1986.

 

[18]  see ICCPR (1966), article 20.

[19] see the material “Freedom of Speech and Freedom of Mass Media material” p. 284

[20] Many of the journalists of Radio Mille Collines” responsible for stirring up the war had been arrested after its end;  see the material “Freedom of Speech and Freedom of Mass Media material” p. 284

 

References:

1.Adam Liptak,( published in June 11, 2008), Hate speech or free speech? What much of West bans is protected in U.S., The New York Times.

 

2.Case of  Brandenburg v. OHIO; Appeal from the Supreme Court of Ohio;No. 492. Decided June 9, 1969. 

 

3.Case of Lingens v. Austria, Application no. 9815/82, Judgement, Strasbourg, 8 July 1986

 

4.Case of Handyside v. United Kingdom , Application no. 5493/72, Judgement, Strastbourg, 7   December 1976

 

5. “Freedom of Speech and Freedom of Mass Media”, material, 274 -284, available at               http://docs.google.com/viewer?a=v&q=cache:UjCwuG5uHBAJ:www.etc-graz.at/typo3/fileadmin/user_upload/ETC-Hauptseite/manual/versionen/russian/13%2520Freedom%2520of%2520Speech%2520and%2520Free%2520Media.pdf+.“Свобода+Слова+и+Свобода+Средств+Массовой+информации”&hl=ru&gl=ru&pid=bl&srcid=ADGEEShmStG1IlQo6JNKi153fL_7pa_Veu8fTplxfJF9Qj7efaze3J6HtQwiSucd-Kz4PbmpV1VDLZF2ykYyvgy9uzi9ZCpMzpFBHXK2gilaNqK-oZoGs84PxtZ5nVMpWGwWtqpTYQfR&sig=AHIEtbR-P2D-9_chA_eodU5_qFKD-GppbA

 

6. Graber, Doris A. (1993), Mass Media and American Politics, Washington, D.C.:  CQ Press.

7. Independent press: Rights and Obligations, The Role of Mass Media in Democratic Society, available at http://www.infousa.ru/media/krimsky_rus.htm

8. International Covenant on Civil and Political Rights, December 16,1966.

9. Karl Popper, (Routledge 2002 ) (1945), “The Open Society and its Enemies”, 668.

 

10. S´evane Garibian, “Taking Denial Seriously: Genocide Denial and Freedom of Speech in the French Law”, working paper, 479-488. Available at http://www.cojcr.org/vol9no2/479-488.pdf

 

11. The Universal Declaration of Human Rights, adopted on December 10, 1948 by the General Assembly of the United Nations.

 

12. The European Convention on Human Rights, 4 November, 1950.

web sources:                  
1. www.echr.coe.int
2. www.cmiskp.echr.coe.int

3. http://docs.google.com/viewer?a=v&q=cache:UjCwuG5uHBAJ:www.etc-graz.at/typo3/fileadmin/user_upload/ETC-Hauptseite/manual/versionen/russian/13%2520Freedom%2520of%2520Speech%2520and%2520Free%2520Media.pdf+.“Свобода+Слова+и+Свобода+Средств+Массовой+информации”&hl=ru&gl=ru&pid=bl&srcid=ADGEEShmStG1IlQo6JNKi153fL_7pa_Veu8fTplxfJF9Qj7efaze3J6HtQwiSucd-Kz4PbmpV1VDLZF2ykYyvgy9uzi9ZCpMzpFBHXK2gilaNqK-oZoGs84PxtZ5nVMpWGwWtqpTYQfR&sig=AHIEtbR-P2D-9_chA_eodU5_qFKD-GppbA

4. http://www.infousa.ru/media/krimsky_rus.htm
5. http://en.wikipedia.org/wiki/Freedom_of_speech.

6.  http://www.cojcr.org/vol9no2/479-488.pdf

 

List of Abbreviations

  1. International Covenant on Civil and Political Rights (ICCPR)
  2. European Convention of Human Rights(ECHR)
  3.  European Court of Human Rights –(EctHR)
  4. The Universal Declaration of Human Rights (UDHR)

 

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