*
*In those wretched countries where a man cannot call his tongue his own, he can scarce call
anything his own. Who ever would overthrow the liberty of a nation must begin by subduing the
freeness of speech.
* Benjamin Franklin
*
*
*Let noble thoughts come to us from all sides.
* Vedic saying
*
*
*
Freedom of Expression

*International and national bodies and courts worldwide have demonstrated that the right to freedom
of expression is central to the international human rights regime and human dignity.
Freedom of Expression

*Totalitarian regimes: full control over expressions, opinions and at time conscience
*The slave trade and slavery, the inquisition, the Holocaust, the genocide in Cambodia or Rwanda,
the Stalin regime and the gulag, prisoners of conscience in Burma, China, Iran…
*
Why freedom of expression matters?

*Free expression is often being targeted on the grounds that it is offensive or insulting.
*Should people in a diverse, multicultural society be protected from offence and insult in the name
of religion or culture, curtailing free speech where necessary?
*
*
Curtailement of Freedom of Expression

*What are this right’s boundaries?
*
*What should be the breaking point?
*
*Where is the threshold whose crossing means the space occupied is no longer that of individual
freedoms but that of criminal behaviour?
*
*
Where do we draw a line?

* 1946, at its very first session, in the UN General Assembly adopted Resolution 59(I) which
states:
*
* “Freedom of information is a fundamental human right and ... the touchstone of all the freedoms
to which the United Nations is consecrated.”
Conceptual Contours of  the Right to the Freedom of Expression

*Freedom of expression is guaranteed under:
*Article 19 of the Universal Declaration on Human Rights (UDHR)
*Article 19 of the International Covenant on Civil and Political Rights (ICCPR): Everyone has the
right to freedom of opinion and expression; this right includes the right to hold opinions without
interference and to seek, receive and impart information and ideas through any media regardless of
frontiers.
*
Article 19, UDHR and ICCPR

*Article 10 of the European Convention on Human Rights (ECHR)
*Article 13 of the American Convention on Human Rights
*Article 9 of the African Charter on Human and Peoples’ Rights.
Other Human Rights Treaties

*(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.
Article 10 (1), ECHR

*“Freedom of expression constitutes one of the essential foundations of [a democratic] society, one
of the basic conditions for its progress and for the development of every man.”
*It forms a central pillar of the democratic framework through which all rights are promoted and
protected, and the exercise of full citizenship is guaranteed.
*
European Court for Human Rights

*
*
*
*Yet, freedom of expression is not absolute. Both international law and most national constitutions
recognise that freedom of expression may be restricted.
*
*
*

Absolute, relative, indirect: examples/differences

*Limitations must remain within strictly defined parameters.
*Article 19(3) of the ICCPR lays down the conditions: 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: (a) For respect of the rights or reputations of others; (b) For the protection of
national security or of public order (ordre public), or of public health or morals.
*
International Covenant on Civil and Political Rights

*For a restriction to be legitimate, all three parts of the test must be met:
*
*(1) the interference must be provided for by law. This requirement will be fulfilled only where
the law is accessible and “formulated with sufficient precision to enable the citizen to regulate
his conduct.”
*
*(2) the interference must pursue a legitimate aim. The list of aims in the various international
treaties is exclusive in the sense that no other aims are considered to be legitimate as grounds
for restricting freedom of expression.
*
Three part test

*
*(3) the restriction must be necessary to secure one of those aims. The word “necessary” means that
there must be a “pressing social need” for the restriction.
*
*
*The reasons given by the State to justify the restriction must be “relevant and sufficient” and
the restriction must be proportionate to the aim pursued.
Three part test

*A similar formulation can be found in the ACHR and ECHR. It is vague enough to leave much
discretion at the hands of states as to how they should restrict freedom of expression.
*
*stringent restrictions requirements of speeches that have been deemed or characterised as
“political”
*
*greater margin of appreciation to states for restrictions targeting other forms of speeches,
particularly those deemed offending public morals or religion.
*
*
Three part test

Margin of appreciation: the cultural, historic and philosophical differences. For more
controversial topics, such as cases involving bioethics or assisted reproduction, the Court
recognises that to make a definitive stance for all contracting States would mean ignoring the
social and cultural values which lie behind the decisions of national legislatures.
“Where, however, there is no consensus within the Member States of the Council of Europe, either as
to the relative importance of the interest at stake or as to how best to protect it, the margin
will be wider. This is particularly so where the case raises complex issues and choices of social
strategy: the authorities' direct knowledge of their society and its needs means that they are in
principle better placed than the international judge to appreciate what is in the public interest…
Vo v France-Art 2 Harvard Law Review

*(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 the rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of the
judiciary.
Article 10 (2), ECHR
What are the permissible limits of restrictions on freedom of expression?

*
*Judiciary: performing the task of reconciling freedom of expression with certain imperatives of
public interest such as national security, public order, public health or morals, and individual
rights such as the right to reputation and the right of privacy.
*
What are the permissible limits of restrictions on freedom of expression?

*What to do about advocacy of national, racial, religious or other hatred?
*
*One of the most vexed questions in the jurisprudence of freedom of expression.
What are the permissible limits of restrictions on freedom of expression?

*Situations in which states CAN impose limitations under certain conditions (as illustrated above)
*
VERSUS
*
*Situations in which states has no discretion, but instead have a DUTY to prohibit by law  (as
follows)
*
Freedom of Expression and Limits on Hate Speech: A Difficult Symbiosis

*The American Convention expressly requires states parties to declare such advocacy a criminal
offence.
*The ICCPR expressly requires that hate speech be prohibited by law.
*The ECHR and the African Charter permit, although they do not expressly require, a proscription in
law.
*The strongest prohibition is found in  International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD, Art. 4).
*
International  Law and its Standards

ICJ Georgia v. Russia

*Article 20 of the ICCPR – the prohibition on war propaganda and on hate speech: "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."
*This is the only duty that States must abide by, as far as restricting freedom of expression is
concerned.
*
Hate speech

•Article 4(a) of CERD places a specific obligation on States Parties to declare as offences
punishable by law six categories of activity:
•1. dissemination of ideas based on racial superiority;
•2. dissemination of ideas based on racial hatred;
•3. incitement to racial discrimination;
•4. acts of racially motivated violence;
•5. incitement to acts of racially motivated violence; and
•6. the provision of assistance, including of a financial nature, to racist activities.
•
Article 4(a) of CERD
Far-reaching protection against hate speech

Finding a common definition of hate speech is further complicated by the fact that the CERD has
established a different standard, which offers the most far-reaching protections against hate
speech.

*The ECtHR has refused to protect attempts to deny the Holocaust, largely on the basis that these
fuel anti-Semitism and states, particularly those in states with a history of anti-Semitism, have
the competence to decide whether they would like to legislate specifically against such denials.
*At the same time, the ECtHR also made clear that if the statements in question do not disclose an
aim to destroy the rights and freedoms of others, or deny established facts relating to the
Holocaust, they are protected by the guarantee of freedom of expression.
*
*
The ECtHR case-law

*No agreed definition of propaganda or hate speech in international law.
*Instead, there are marked different regional or national approaches in restricting it.
Common Definition in International Law Missing

*Hate Speech:
*(1) incites its audience to discrimination or hatred?
*(2) incites to violence?
*
What Constitutes Hate Speech?

*One hand of the spectrum: the US approach which protects hate speech unless:
*
US Approach

•(1) the speech actually incites to violence and
•(2) the speech will likely give rise to imminent violence.
•
•Very stringent standard: even speech advocating violence and filled with racial insults, will be
protected absent a showing that violence is likely to occur virtually immediately.
US Approach

Ryan Goodman, Brandenburg v Ohio. Compare below-hate speech laws introduced/Azerbaijan/Turkey-which
scenario is preferable?

*Substantial differences in the European Union:
*The French or German position of high restriction on FoE.
*The UK or Hungary where greater protection has been afforded to a variety of speeches.
*The development of specific hate speech regulations for denying the Holocaust or other genocides.
*
*
*
*
European Union Approach

*no one should be penalized for statements which are true;
*no one should be penalized for the dissemination of “hate speech” unless it has been shown that
they did so with the intention of inciting discrimination, hostility or violence;
*the right of journalists to decide how best to communicate information and ideas to the public
should be respected, particularly when they are reporting on racism and intolerance;
*one should not be subject to prior censorship; and
*any imposition of sanctions by courts should be in strict conformity with the principle of
proportionality.
*
Hate Speech Law Limitations

*In some countries hate speech laws have been introduced to outlaw extreme expression.
*
*The success of such laws has often been questionable and one of the consequences has been to drive
hate speech underground.
*
*
Hate Speech Law Limitations

*In many countries, overbroad rules in this area are abused by the powerful to limit
nontraditional, dissenting, critical, or minority voices, or discussion about challenging social
issues.
*Free speech is a requirement for, and not an impediment to, tolerance.
Examples of misuse of hate speech laws

*The exercise of freedom of expression and a free and diverse media play a very important role in
promoting tolerance, diffusing tensions and providing a forum for the peaceful resolution of
differences.
*
*Compare the statement with the following case
Role of Media

*One reporter and one editor were sentenced   for incitement of religious hatred.
*The journalists published an article in the small Azeri newspaper Sanat entitled “Europe and Us”,
in which they compared European and Islamic traditions. In it, they stated that Islam was an
obstacle to Azerbaijan’s economic and political development.
*
*
Azerbaijan and the Role of Media

*The article led to protests and death threats from religious extremists, who called for the
execution of journalists.
*Journalists were charged under Article 283 of the Azerbaijani Criminal Code, on incitement of
national, racial and religious hatred.
*
Azerbaijan and the Role of Media

*Is the right to freedom of religion about respecting religion or about respecting people’s right
to practice the religion of their choice?
*
*Do offensive statements threaten the ability of adherents to religions to exercise and express
their own beliefs?
*
*
Azerbaijan and the Role of Media

Azerbaijan and the Role of Media
*The right to freedom of religion does not impose a duty on States to enact laws that protect
believers from insult or offence (Choudhury v UK In Dubowska & Skup v Poland).

*
*Was the article causing an offence or inciting to religious hatred?
*
*Distinction between speech that truly incites to discrimination, hostility or violence, and speech
that does not.
*Mere offence/critique versus incitement.
*
Azerbaijan and the Role of Media

*No incitement to violence, but simply criticism, which is protected under Article 10 of the ECHR,
to which Azerbaijan is a signatory.
*
*In a democracy one should be free to express opinions about all subjects, including religion.
Azerbaijan and the Role of Media

*Azerbaijan is in breach of its obligations under international law to protect and promote freedom
of expression.
*This creates a climate of fear, which is incompatible with a free and independent media.
Azerbaijan and the Role of Media

*In Central Asia, hate speech laws are used to repress all forms of Islamist movements, including
those that have publicly stated that they are committed to non-violence, such as Hizb-ut-Tahrir.
Examples of misuse of hate speech laws

*Turkey frequently uses Article 312 of the Penal Code – which provides for up to three years’
imprisonment for anybody who ‘incites hatred based on class, race religion, or religious sect, or
incites hatred between different regions’– against those who espouse Kurdish nationalism or even
express pride in Kurdish culture.
Examples of misuse of hate speech laws

Penalising the expression of their ideas does not reduce the problem or make the proponents of such
ideas disappear.

*The practical test is important, indeed crucial, to ensure that whatever regulations and
restrictions are put in place (both negative and positive ones) fulfill the social functions they
are meant to play.
*
*
Examples of misuse of hate speech laws