Freedom of Expression
Freedomof expression is among the fundamental rights that have a specialstatus because the right to express one’s opinion is the basis ofdefending all other types of fundamental as well as non-fundamentalrights. The European Convention for the Protection of Human Rightsdefined the freedom of expression as the right of all people to holdtheir opinions, to receive information, and to impart suchinformation without being interfered with by the incumbent authority.1In essence, freedom of expression embraces the sanctity of theopinions held by individuals, free speech, and freedom of expressionin the sector of arts, free press, freedom to receive informationfrom any source, and the freedom to maintain silence. This paper willanalyze article 10 of the ECHR with a focus on the overarchingarguments and the compatibility of the limitations imposed by Article10 of the ECHR and the Terrorism Act and the Public Order Act 1986.
Challengesthat the European countries faced in the aftermath of the SecondWorld War forced them to formulate a universal definition of humanrights. This motivated them to form for ECHR, which is aninternational treaty that seeks to protect fundamental rights as wellas the freedoms of citizens of the member states. 2ECHR was framed in the year 1950 by the Council of Europe, but itsenforcement began in 1953. Council of Europe has remained open to allnations that could wish to ratify it. The convention facilitated the
1.Solemne, P. Chapter of fundamental rights of the European Union.Journalof the European Communities36, no. 1 (2000): 11-22.
2.Helfer, R. Redesigning the European Court of Human Rights. TheEuropean Journal of International Law19, no. 1 (2008): 126-159.
establishmentof a common court, whose mandate is to decide cases pertaining to theviolation of the rights of individuals or groups from the memberstates. 3Protecting the freedom of expression within the member states is akey function of the convention.
TheEuropean Council was motivated by three major arguments whiledrafting the article on the freedom of expression. The first argumentis the search for the truth, which is based on the notion that anopen discussion paves the way for the determination of the truth. 4In this case, an open discussion refers to a conversation thatinvolves competing ideas and arguments that are given and heard byfree people. This could only be achieved if such freedom wasguaranteed in a legal framework, such as the ECHR convention.
Thesecond argument is about democratic self-government, which helped thecommission in seeing communication as the conduit or the basis ofdemocratic governance. Freedom of expression serves as a safety valvethat facilitates the free flow of ideas and information that isintended to inform a given political debate. 5This argument is based on the idea that people are willing to acceptthe views of others if they have the opportunity to influence suchideas through established principles. Therefore, framing an articlethat could define the universal freedoms and rights provided thebasic principles on which the member states could establishdemocratic governance.
Thethird argument self-fulfillment and autonomy, which state that freeexpression of
3.Helfer, R. Redesigning the European Court of Human Rights. TheEuropean Journal of International Law19, no. 1 (2008): 126-159.
4.Cohen-Almagor, R. Freedom of expression v. social responsibility:Holocaust denial in Canada. Journalof Mass Media Ethics28 no. 1 (2013): 42-56.
5.Hargreaves, R. Thefirst freedom: A history of free speech. PhoenixMill, UK: Sutton. 2000.
anidea is desired by people as an end in itself, and not just becauseit contributes towards a process of truth finding. This gives anexplanation for the need to protect literature and the arts usingarticles on freedom of expression.6The three arguments support the idea that suppression and censorshipsare negative and tend to increase harm than the good. Therefore, asociety that seeks to uphold good should respect the freedom ofexpression.
TerrorismAct 2006 and the freedom of speech
Part1, Section 1
TheTerrorism Act of 2006 is one of the controversial laws that have beenformulated to counter terrorism in Europe. The formulation of the actwas motivated by the 2005 bombing that occurred in the city ofLondon. 7The act sought to curtail the spread of information that couldsupport or motivate terrorist groups, while prohibiting people frompossession of radioactive and terrorism training sites at the sametime. Sections 1 and 2 of the Act have a direct impact on the freedomof speech. First, Section 1 of Part 1 of the Terrorism Act 2006 seeksto prohibit the publication of any statement that might be understoodby the targeted audience as either an indirect or a directencouragement of terrorism. 8Indirectpublications that seem to encourage terrorism include the statementsthat glorify the acts of terrorism and the public have adequatereasons to infer that such acts are being glorified by thestatements.
6.Hargreaves, R. Thefirst freedom: A history of free speech. PhoenixMill, UK: Sutton. 2000.
7.Ekaratne, S. Redundant restriction: The U.K.’s offense ofglorifying terrorism. HarvardHuman Rights Journal 23(2010): 205-221.
Part1, Section 2
Secondly,Section 2 of the Part 1 of the Act prohibits individuals as well asgroups from disseminating publications that might support terrorismin Europe. The publications covered in this section are those thatare likely to be understood as either indirectly or directlymotivating terrorists. 9In addition, Section 2 prohibits the publication of information thatmight be helpful in the preparation or commission of different actsof terrorism. Although all people have the right to receive, share,and impart information, the potential impact of the information needsto be considered. The section targets all sorts of media that shareinformation with the public, with the objective of ensuring that theinformation that reaches the public is harmless.
Compatibilitybetween Terrorism Act and ECHR
Thetwo sections (Section 1 and 2) of Part 1 of the Terrorism Act 2006limits the freedom of speech by prohibiting people from disseminatinginformation that is deemed to be a threat to the national security.The act limits the spread of information that might encourage acts ofterrorism only, which implies that the framers of the actacknowledged the fact that people have the freedom of expressingtheir views, but with some limits. This is consistent with ECHRArticle 10 that limits the dissemination of information that mightput the national security at risk. Therefore, national security is alegal ground on which the freedom of expression is limited. However,the limitation was done with caution. For example, Article 10 of ECHRdoes not allow limitations to be imposed unless the expression isaimed at inciting
9.Ekaratne, S. Redundant restriction: The U.K.’s offense ofglorifying terrorism. HarvardHuman Rights Journal 23(2010): 205-221.
imminentcrime is very likely to provoke such crime, and there exist somedirect connection between the expression in question and the probableoccurrence of the crime. 10
Limitationsimposed by the two sets of laws are based on the idea that terroristsand other criminals are motivated by the spread of information abouttheir acts. This is because criminals find satisfaction wheninformation about their actions is spread to a larger population,thus imparting fear in them. For example, the objective of theterrorists is to create a direct impact or damage to the society byspreading fear and make people feel insecure. 11This means that the capacity of the criminal groups to attract theattention of the media motivates them to continue with their criminalactivities, while the role of the media spreading the news aboutcrimes contributes towards the accomplishments of their evil goals.In such situations, the media fraternity is expected to filter theinformation that should be spread to the public in the interest ofthe national security. Although the media have the right to report onany occurrence, limiting their freedom to report on certain crimesenhances the national security. Apart from the legal restrictions,the media people are expected to observe ethical as well asprofessional standards as they exercise their special responsibility.
Domesticcourts have a role to play in determining whether the informationpublished encourages terrorism in any way. Article 1 Section, of theTerrorism Act, requires the jury to conduct an assessment anddetermine whether there was likelihood that a significant number
10.The National Archives. TerrorismAct 2006. The National Archive.Norwich: The National Archive.
11.Yamali, N. TheUniversal Declaration of Human Rights.Brussels: European Union, 2014.
ofrecipients of the information would interpret it as a means ofencouraging terrorism. 12For example, in R v. Ahmed Faraz, 2012, the court of appeal cancelAhmed’s conviction on the grounds that the jury in a lower courthad been given improper information. The court had been told that thenamed terrorist group possessed similar books and DVDs as thosepossessed by defendant. 13This implies that domestic courts are expected to prevent the abuseof the freedom of expression by implementing its limitations withcaution in order to avoid convicting innocent people. Therefore, thecourt should determine whether the expression in question canreasonably be associated with a given crime.
PublicOrder Act 1986
ThePublic Order Act was framed to prevent the sharing or publication ofinformation that can harm other people. Sections 4 of the Act make itclear that the use of threatening, insulting, and abusive behavior orwords is an offense. 14This imposes a limit on the freedom of expression by ensuring thatpeople do not abuse the freedom by making insulting statements thatcan cause alarm, harassment, or distress to others. Part 3 of thearticle lists acts that are considered to be offensive. These actsinclude the use of written material, behavior, or words (Section 18)distribution of material (Section 19) public performance (Section20) broadcasting (Section 22) and possession of inflammatoryinformation (Section 23). 15 These sections were formulated toprevent the abuse of the freedom of expression by
12.Craven, E. Case comment: R, V. Faraz-terrorist publications and freespeech in the court of appeal. London: Inform 2013.
14.Cohen-Almagor, R. Freedom of expression v. social responsibility:Holocaust denial in Canada. Journal of Mass Media Ethics 28 no. 1(2013): 42-56.
peoplewho would wish to pass racially or religiously inflammatoryinformation.
PublicOrder Act 1986 and Article 10 of ECHR
Thelimitations imposed by the two sets of law are compatible in thatthey both prohibit expressions that demonstrate religious and racialhatred. The entire of Part 3 of the Public Order Act outline actionsthat can be considered to be religious and racial hatred. 15Similarly, Article 10 of ECHR imposes a limit on expressions thatmight demonstrate one’s hatred against a given religion, belief, orrace. ECHR and the act allow the freedom of expression as long as itdoes not discriminate people on the basis of their socialcharacteristics. The universal declaration of human rights took thisinto account by including an article on equality, which prohibits anyactions that are likely to discriminate against persons on the basisof their social characteristics. Similarly, negative expressionsabout a given religion or a set of beliefs can be easily interpretedto imply discrimination against that religion. For example, thepublication of publication of images of Prophet Mohammed in 2005 bythe Danish newspaper as a cartoon was perceived as an expression ofhatred towards the Islam as a religion. 16
Domesticcourts of law are mandated to assess the case of the expression ofreligious or racial hatred against the rights of individuals toreceive, share, and impart information without being intimated. Thisimplies that the role of the court is to determine if such rights
15.Muller, M. and Ozcan, E. The political iconography of Muhammadcartoons. Political Science and Politics 10 (2007): 287-291.
16.Liberty. PublicOrder Act 1986.London: Majesty Stationery Office, 1987.
wereabused. For example, the Magistrate Court in Westminster acquittedJohn Terry of alleged hate speech he made in Loftus Stadium in 2011.17This case indicates the court should weigh between individuals rightto make expressions freely and the impact of the expressions on thetargeted audience.
Althoughthe freedom of expression provides the basis for defending all otherforms of rights, it should be limited in some cases in order toprevent its abuse. Freedom of expression is based on three majorarguments, including the search for truth, self-fulfillment, and theneed for self-governance. Freedom of expression should be limiteddepending on the potential impact of such expressions. Examples ofcircumstances that can result in the limitation of the freedom ofexpression include the need to protect the national security, thedesire to avoid religious intolerance, and racial discrimination.ECHR, the Terrorism Act, and the Public Order Act 1986 limit thefreedom of expression with respect to the acts of terrorism,religious, and racial hatred. However, these sets of law givedomestic courts the responsibility of determining whether expressionsrepresent the abuse of the right to free expression.
17.Julian, S. The John Terry case. London: Supreme Court, 2014.
Cohen-Almagor,R. Freedom of expression v. social responsibility: Holocaust denialin Canada. Journalof Mass Media Ethics28 no. 1 (2013): 42-56.
Craven,E. Case comment: R, V.Faraz-terrorist publications and free speech in the court of appeal.London: Inform 2013.
Ekaratne,S. Redundant restriction: The U.K.’s offense of glorifyingterrorism. HarvardHuman Rights Journal23 (2010): 205-221.
Hargreaves,R. Thefirst freedom: A history of free speech. PhoenixMill, UK: Sutton. 2000.
Helfer,R. Redesigning the European Court of Human Rights. TheEuropean Journal of International Law19, no. 1 (2008): 126-159.
Julian,S. TheJohn Terry case.London: Supreme Court, 2014.
Liberty.PublicOrder Act 1986.London: Majesty Stationery Office, 1987.
Muller,M. and Ozcan, E. The political iconography of Muhammad cartoons.PoliticalScience and Politics10 (2007): 287-291.
Solemne,P. Chapter of fundamental rights of the European Union. Journalof the European Communities36, no. 1 (2000): 11-22.
TheNational Archives. TerrorismAct 2006.The National Archive. Norwich: The National Archive.
Yamali,N. TheUniversal Declaration of Human Rights.Brussels: European Union, 2014.