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Media Law
Freedom of Speech I.

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Role of mass media in society
nMass media influence society and people…
nbut we do not know how.
nreason for regulation
n
nMedia can help understand specific issues in society.
nMedia can help not to understand specific issues in society.
n
nPublic debates on a political question of general importance.
nWhat is in public interest?
nEntertainment – infotainment…
nIs there anyone who wants to speak?

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Stereotypes – responsibility of media
nWhen they are not under-represented or invisible, women are often represented in the media in
roles traditionally assigned by society, portrayed as passive and lesser beings, mothers or sexual
objects. These sexist stereotypes in the media perpetuate a simplistic, immutable and caricatured
image of women and men, legitimising everyday sexism and discriminatory practices and establishing
a barrier to gender equality.
nThe media, a vital constituent of democracy, have a particular responsibility in this field to
promote respect for human dignity, the fight against all forms of discrimination and equality
between women and men.
nReference to Committee : Doc. 11714, Reference 3492 of 3 October 2008. „Combating sexist
stereotypes in the media“
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Marketplace idea – U.S.A. - Competition of ideas
n„Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of
your premises or your power and want a certain result with all your heart you naturally express
your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate
that you think the speech impotent, as when a man says that he has squared the circle, or that you
do not care whole heartedly for the result, or that you doubt either your power or your premises.
But when men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas-that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth is the only ground upon which
their wishes safely can be carried out.“ (Abrams v. United States/Dissent Holmes)
nThe classroom is peculiarly the „marketplace of ideas“. The Nation's future depends upon leaders
trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a
multitude of tongues, [rather] than through any kind of authoritative selection. (512) Tinker v.
Des Moines School District
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Marketplace - Europe
nImportance of the free press
nThe Court emphasises that the promotion of free political debate is a very important feature of a
democratic society. It attaches the highest importance to the freedom of expression in the context
of political debate and considers that very strong reasons are required to justify restrictions on
political speech. Allowing broad restrictions on political speech in individual cases would
undoubtedly affect respect for the freedom of expression in general in the State concerned. (FELDEK
v. SLOVAKIA)
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Freedom of speech (expression)
nIncludes the right to express opinions, right to receive and impart information and to share such
information.
n[The right] guarantees not only the freedom of the press to inform the public but also the right
of the public to be properly informed. (Sunday Times v. U.K. 1979)
nOpen definition of the  content of this right.
nLimited through „non laedere“ - no one shall restrict anyone else.
nCan be restraint by law.
nThe state shall not disturb anyone who realizes his/her freedom of expression.
nNo one is obliged to help to promote anyone's expression.
nFoE has many aspects.
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Convention for the Protection of Human Rights and Fundamental Freedoms – Article 10
n1.  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.
n2.  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.
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n[F]reedom of expression [...] constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject
to [restrictions] it is applicable not only to "information" or "ideas" that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without
which there is no "democratic society". Article 10 protects not only the substance of the ideas and
information expressed, but also the form in which they are conveyed. (Oberschlick v. Austria)
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Universal Declaration of Human Rights – Article 19.
nEveryone 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
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International Covenant on Civil and Political Rights – Article 19
n1. Everyone shall have the right to hold opinions without interference.
n2. 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.
n3. 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:
n(a) For respect of the rights or reputations of others;
n(b) For the protection of national security or of public order (ordre public), or of public health
or morals.
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Expression
nAll verbal or non-verbal form s of communication by which is communicated some idea or opinion.
nSymbolical expression:
nIn deciding whether particular conduct possesses sufficient communicative elements to bring the
First Amendment into play, we have asked whether "[a]n intent to convey a particularized message
was present, and [whether] the likelihood was great that the message would be understood by those
who viewed it.  [Texas v. Johnson, 491 U.S. 397 (1989)]
n„Right not to speak“ [West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)]
nfree commercial speech [Casado Coca v. Spain]
nFacts
nUntrue statements
nFalse information is not a value worth protecting with respect to the freedom of expression. The
deliberate expression of false facts is not protected. (CSU-NPD-decision (Wahlkampf case) BVerfGE
61, 1, 1 BvR 1376/79 of June 22, 1982
neven if there is no proof of the existence of the facts ... no crime of defamation was committed
because of the absence of mens rea, when the publisher believed mistakenly in the existence of the
facts and there was good reason for his mistaken belief on the basis of reliable information and
grounds. (Japan; Katsuyoshi Kawachi (Judgment upon a case of defamation) 25 June 1969, Case Number
(A) No. 2472 of 1966

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Expression - ECHR
n„information“ or „ideas“ that are favorably received or regarded as inoffensive or as a matter of
indifference.
ninformation or ideas that offend, shock or disturb the State or any sector of the population
n„Expression“ is not restricted to verifiable, factual data, but also includes opinions, criticism
and speculation, whether or not they are objectively „true“
npolitical expressions
nartistic expressions
ncommercial expressions
nAn extensive range of media for the production, transmission and distribution of information and
ideas, including speech, print, radio and television broadcasting, artistic creations, film and
electronic information systems, are protected.

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Expressions
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Expression - ECHR

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Restraints of freedom of expression I.
nProvided by law:
nFirstly, the law must be adequately accessible: the citizen must be able to have an indication
that is adequate in the circumstances of the legal rules applicable to a given case.
nSecondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision
to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice
- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given
action may entail. Those consequences need not be foreseeable with absolute certainty: experience
shows this to be unattainable.
nThe Sunday Times v. The United Kingdom - 26 April 1979, Application No. 6538/74
n
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Restraints of freedom of expression II.
nLegitimate aim
nIn cases concerning the press, the national margin of appreciation is circumscribed by the
interest of democratic society in ensuring and maintaining a free press. Similarly, that interest
will weigh heavily in the balance in determining, as must be done under paragraph 2 of Article 10,
whether the restriction was proportionate to the legitimate aim pursued.  (Thoma v. Luxembourg,
2001)
nNecessary in a democratic society
nThe test of "necessity in a democratic society" requires the Court to determine whether the
"interference" complained of corresponded to a "pressing social need", whether it was proportionate
to the legitimate aim pursued and whether the reasons given by the national authorities to justify
it are relevant and sufficient. (Feldek v. Slovakia, 2001)
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