Freedom of expression,
|“||whether exercised by individuals or by the media, and the ability to exercise it, is an essential feature of any open, liberal and democratic society.||”|
Freedom of expression is defined in Article 19 of the Universal Declaration of Human Rights:
|“||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 regardless of frontiers.||”|
"Freedom of expression" is secured by the European Convention on Human Rights (ECHR) (formally the "Convention for the Protection of Human Rights and Fundamental Freedoms"). Article 10 of the Convention states:
|“||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 authorities 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.
It is incorporated into the Community legal order in two ways:
- 1. Article F(2) of the Treaty on European Union reads:
|“||The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on November 1950 and as they result from the constitutional traditions common to the Member State, as general principles of Community law.||”|
- 2. The European Court of Justice has acknowledged the relevance of the principle of freedom of expression as declared by Article 10 of the Convention and reckoned it among the general principles of Community law. In Case C-260/89 Elliniki v. Radiophonia Tileorassi (1991) ECR 1-2925 it held:
|“||With regard to Article 10 of the European Convention on Human Rights . . . it must first be pointed out that, as the Court has consistently held, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. For that purpose the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. . . . The European Convention on Human Rights has special significance in that respect. . . . It follows that . . . the Community cannot accept measures which are incompatible with observance of the human rights thus recognized and guaranteed.||”|
The European Court of Human Rights (ECHR) has confirmed that freedom of expression extends not only to ideas and information generally regarded as inoffensive but even to those that might offend, shock or disturb. But the principle is never an absolute one. Freedom of expression may be restricted by a State, though the possible restrictions are circumscribed by a very precise set of criteria: to be considered necessary in a democratic society, the measure must meet a real social need and be effective without being disproportionate in the restrictions it imposes. The assessment will require the proportionality test to be applied.
"The Internet has profound value for freedom of opinion and expression, as it magnifies the voice and multiplies the information within reach of everyone who has access to it. Within a brief period, it has become the central global public forum. As such, an open and secure Internet should be counted among the leading prerequisites for the enjoyment of the freedom of expression today. But it is constantly under threat, a space — not unlike the physical world — in which criminal enterprise, targeted repression and mass data collection also exist. It is thus critical that individuals find ways to secure themselves online, that Governments provide such safety in law and policy and that corporate actors design, develop and market secure-by-default products and services. None of these imperatives is new. Early in the digital age, Governments recognized the essential role played by encryption in securing the global economy, using or encouraging its use to secure Government-issued identity numbers, credit card and banking information, business proprietary documents and investigations into online crime itself."
Article 19 of the International Covenant on Civil and Political Rights provides that:
|“||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 choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
- freedom of religion
- freedom of speech
- freedom of the press
- freedom of assembly, and
- freedom to petition the government.
"Freedom of expression . . . encompasses civil liberties that are often infringed when the causes involved are unpopular. In such cases, one way of protecting individuals exercising rights of free expression is to provide a means for them to do so anonymously. Thus, an individual may choose to participate in an unattributable online discussion that is critical of the government or of an employer, to make an unidentified financial contribution to an organization or a political campaign, to attend a meeting organized by unpopular groups, or to write an unattributed article expressing a politically unpopular point of view.
Other international instruments
The following international instruments seek to protect freedom of expression
- Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights
- Article 9 of the African Charter on Human and Peoples' Rights
- Article 13 of the American Convention on Human Rights and
- Article 10 of the European Convention on Human Rights.
- Global Survey on Internet Privacy and Freedom of Expression, at 9.
- Handyside v. United Kingdom, 5493/72 (1976).
- Green Paper on the Protection of Minors and Human Dignity in Audiovisual and Information Services, at 12.
- U.N. Encryption Report, at 5.
- At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues, at 102.