Freedom Of Expression

Question 1

Where is the freedom found?

Answer 1

• article 19 of the UDHR and the ICCPR
• article 19 includes “basic hate speech” whereas article 20 ICCPR includes incitement
• it is a freedom but comes with duties and responsibilities
• presumption of the freedom and limits are exceptional

Question 2

Are there any limitations to the freedom?

Answer 2

Yes in article 19(3) of the ICCPR
- must be provided by law I.e. Is it proportionate - for a public official or a politician you could say there is a legitimate aim of criticism
- must be necessary
A) for rights and reputation of others
B) for the protection of national security or of public order / public health or morals

Question 3

HR Committee GC 10 says?

Answer 3

Basically reinstated article 19

Question 4

HR Committee GC 34

Answer 4

What a state party invokes a legit ground for restriction of freedom of expression, it must demonstrate in specific and individualised fashion the precise nature of the threat and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat

Question 5

For a country to restrict freedom of expression it must be?

Answer 5

basically if a country restricts expression it has to be necessary and proportionate

Question 6

Limits to freedom

Answer 6

ICERD article 4

• do we agree that propaganda shows the superiority of one race or group of persons of one colour or ethnic origin
• dangerous group if one religious group says that they’re better than others
• icerd wanted to include religion but it’s hard to make the norm for religious believers and equality - religion is inherently discriminated against, believer gets highest treatment and non-believer lowest

Question 7

Declarations?

Answer 7

Joint declaration of the freedom of expression and the internet by the HRC and UN special rapporteur in 2011

Question 8

Freedom to seek, receive, impart, information and ideas = ?

Answer 8

Active and investigative journalism in the public interest

Question 9

Freedom to receive information ?

Answer 9

Thorgier and Thorgierson v Iceland - ECtHR includes the right of the public to be informed and duty in media to impart info to the public either orally, written, print, art or any other kind

Question 10

What did Handyside v UK establish?

Answer 10

That the information imparted informed etc doesn’t just have to be what is tolerable, can be disturbing or offensive too - this was a little red hand book which produced content of a sexual nature where children could see

Nontheless: restriction was

• prescribed by law
• necessary for a democratic society
• for a legitimate aim

Question 11

Yilderim v Turkey - internet

Answer 11

Provided that the internet is also principal means of expression

Question 12

JRT and the W.G Party v Canada - phones and anti - Jew

Answer 12

Phoning people harassing them about the anti-Jewish sentiments, this dissemination of ideas constituted ethnic and religious hatred = restriction was compatible with the ICCPR

Question 13

Ross v Canada - bias teacher

Answer 13

Was teaching his bias against a religion I believe - his removal was not disproportionate

Question 14

Faurisson v France - HRC,

Denying gas chambers were used

Answer 14

Faurisson v France 1993 - France has a law not to deny crimes against humanity - he contested the holocaust and was struck off from being a professor which was held to be proportionate

• has to be provided by law
• has to fulfil one of 19(a) and (b) criteria
• necessary to fulfill a legitimate purpose

Question 15

Garaudy v France - another holocaust denial but under ECtHR

Answer 15

The matter of publishing radically defamatory statements, the government couldn’t deny that criminal convictions could be regarded as interferences with article 10 ECHR.

• the limit was necessary in a democratic society
• peaceful co-existence of the French people
• undermining or rewriting this type of historical face undermines fight against racism and anti-semitism = serious threat to public order

Question 16

Castells v Spain

Answer 16

Political party opposition, individual complained that the government was linked to murders and attacks

• freedom of expression is really important for politicians as representatives of the people and their interests, if this was to be limited it would need close scrutiny by the courts
• in a newspaper rather than senate floor? Didn’t matter - any mass media / press is incumbent to impart information and ideas on political questions for the public’s interest
• governments should be open to criticism

Question 17

Castells v Spain 2 - importance of freedom of the press

Answer 17

Freedom of the press enables the public to be informed about the political ideas and opinions of politicians, forming ideas and attitudes on them
> gives politicians the opportunity to reflect on the public’s preoccupations
= enables free political debate - key to democratic society

Question 18

Sunday times case 1979 - thamidolide drug and deformed babies

Answer 18

Freedom of expression limitation was a violation of art 10 echr because it would be contrary to the public interest

• mothers who took drug during pregnancy and got deformed babies from it
• prejudiced legislation that would be coming into force so the government limited it

Question 19

Leyroy v France - 9/11

Answer 19

A French national, leyroy had decipitated 9:11 cartoon on the day it happened, it was then published on the 13th September, with the slogan “we all dreamt of it… Hamas did it” - he was convicted for condoning terrorism

• he tried to argue that it was his freedom of expression of anti American imperialism
• ECHR said it went further than this, he was condoning and even supporting the attack on America, and given it was published in a certain area of France was significant as it would get a certain public reaction : public order
• no violation of ECHR article 10 because it was for the overall fight against terrorism

Question 20

Hate speech - limits to freedom

Answer 20

Article 20 ICCPR

• ICERD article 4 obliges states to criminalise speech that amounts to war propaganda or that advocates racial hatred
• though this is subject to article 19(3) i.e. Provided by law and be the least restrictive means of achieving the relevant aim

Question 21

Blasphemy: criticism of religion is different than hatred towards people because of their religious beliefs

Answer 21

2005: danish cartoons decipitating the profit Mohammed considered insulting to the Islamic faith
- lead to call on the freedom of expression as a defamation of religions HRC and Gen assembly lead by mostly Muslim states
- western states mostly rejected the need to protect religious groups from criticism

Question 22

In 2011 the HR council moved away from religious defamation to?

Answer 22

Protecting religious believers from violence in their resolution 16/18 2011

Question 23

International human rights law protects individuals rather than a religion itself

Answer 23

Blasphemy laws are against freedom of expression

• however states continue to have blasphemy laws and
• ECtHR has upheld convictions where “believes legitimately felt object of unwarranted offensive attacks” - I.A. V Turkey 2007

Question 24

Islamaphobia and anti-semitism

Answer 24

Incitement to ethnic, racial or religious hostility, hatred or discrimination is NOT protected speech under FOE
- increase in islamaphobia in Europe since 9/11: Mark Anthony Norwood v UK

• anti Semitism: Faurisson v France

Question 25

Mark Anthony Norwood v UK - what happened

Answer 25

Islmaphobia

• BNP politician had a poster with the half crest and star in a prohibited sign and also “Islam out of Britain - protect the British people”
• convicted of hostility towards a racial or religious group
• ECtHR = freedom of expression was infringed was rejected
• his poster was trying to link all muslims to terrorists