Lecture: Freedom of expression as a human right

There are many good reasons for supporting freedom of expression. It is the cornerstone of any democratic society, it is a necessary part of getting closer to the truth and it is an important part of our personal development. Without freedom of expression we cannot communicate with others and create our identity. These positive aspects are reflected in Article 19, relating to freedom of expression, in the Universal Declaration on Human Rights (1948): 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 and regardless of frontiers.


The state shall protect everyone's freedom of expression 


Freedom of expression, as a human right, implies that the states shall protect everyone´s freedom to have opinions and to express them. Expressions can be oral, in writing or through action. Personal expressions like the way we dress, hairstyles etc. are protected. It also safeguards our right to information. In practice, freedom of expression includes the freedom of the press and broadcasting media. Diversity in the media should be protected. Without a free and diverse press, there can be no democratic society.

Freedom of expression protects basically all expressions, independent of their content. This means that also insulting, offensive, blasphemous, racial, degrading and mendacious expressions are protected. This right then also protects words and pictures we disapprove of. This might be opinions, ideas or information that shock us, offend certain groups, or disturb the state. The reason why freedom of expression compels the states to allow provocative expressions is that such statements – paradoxically – can have a valuable impact. The point is simple: only when people are confronted with ideas and attitudes they don´t like,  can they fight back. By delivering counterarguments, the ideas can be refuted and peoples´ opinions changed. In a longer perspective, this dynamic will reduce the occurrence of destructive ideas and hence develop more democratic, mature and peaceful societies.

Although freedom of expression, in principle, protects all expressions, it is not without boundaries. When expressions have very negative impact on individuals or society at large, the states have a legal right to restrict it.


The state’s right to restrict expressions


After World War II, in the process of negotiating juridical binding human rights conventions, the states agreed on freedom of expression as an essential human right. Hence, in both the European Convention on Human Rights (1950) and the International Covenant on Civil and Political Rights (1966), freedom of expression is included. However, since conventions are legally binding (unlike declarations, such as the Universal Declaration of Human Rights), the states wanted to reserve the right to restrict expressions with destructive impact. This could for example be expressions that lead to disorder or crime, threaten health and morality or violate another citizen’s reputation or rights. Thus, the Articles about freedom of expression in the International Covenant on Civil and Political Rights, the European Convention on Human Rights, as well as other legally binding human rights instruments, include provisions on restrictions. Article 10 in the European Convention on Human Rights reads:

Article 10. Freedom of Expression

  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.
  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.

The Article recognises that freedom of expression cannot be absolute, but that there are good reasons for restricting expressions that have harmful and destructive effects. This may refer, for example, to expressions that compromise other peoples´ privacy and family life; that discriminate against vulnerable groups; that encourage violence and terrorism, that are pornographic and can harm children and young people; that disclose state secrets; or that have other negative impact on individuals, the state or the society at large. According to the Article, however, any restrictions must be according to the law and must be necessary in a democratic society. The underlying argument is that since freedom of expression is such a fundamental democratic value, the states´ restrictions cannot be arbitrary.


Where should the line be drawn?  


Since the treaties' formulations, in general, are narrow, they do not cover all issues and dilemmas that may arise. Indeed, the term “necessary in a democratic society” is not self-explanatory, but must be interpreted from one specific case to the next. The UN Human Rights Committee, through its general guidelines and recommendations1,  and the European Court of Human Rights, through its case law, interpret how the scope of the freedom of expression is to be understood according to, respectively, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The practice of these bodies will be relevant for the interpretation of freedom of expression and when states should be allowed to impose restrictions.

Where the line should be drawn between lawful and unlawful expressions is an important debate. Since the treaties recognise a number of legitimate limitations on the exercise of the freedom of expression, freedom of expression can mean different things to different people, depending on the State and the situation in question. When should the states´ restrictions be acceptable?


Freedom of expression – crucial for our democracies


In considering whether it is legitimate to intervene against an expression, the nature and meaning of the statement must be considered. One important point to note is that expressions that have public interest, for example those that questions politicians and their power base, enjoy stronger protection than expressions without such interest. This kind of information is crucial for our democracies. People must know whom they are choosing as their leaders.

It is important to be aware of the fact that a number of governments can misuse their legal right to impose restrictions and restrict the freedom of expression for political reasons. In such cases, while they may explain the restrictions with the best of intentions – whether the purpose is to prevent discrimination, ensure stability or counteract terrorism – their aim is to reduce criticism against their own power base. In a number of states, freedom of expression is compromised today. In fact, several European and global organisations that monitor freedom of expression report that the situation today is under threat.

Freedom of opinion and expression is the cornerstone of any democratic society. Today there are few states in the world which do not lay down this right in their constitutions. Whether this is a freedom fully enjoyed by all peoples is another matter entirely.


Now the students are ready for the following-up group work of analyzing Strasbourg cases on freedom of expression


1 United Nations, UN Human Rights Committee 102nd session, Geneva, 11-29 July 2011, General Comment No. 34, Article 19: Freedom of opinion and expression  

Lillian Hjorth, Director, Human Rights Academy (Norway)

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