Freedom of expression

What is freedom of expression?

Freedom of expression is a fundamental component in a democracy. It provides every person the freedom to hold diverse opinions and express them, to obtain information, as well as to communicate information and ideas without interference from public authorities. This fundamental right allows for the circulation of different perspectives and beliefs, as well as free debate and discussion within society. 

Moreover, it is a key tool for the media and the wider society to hold the State, its institutions, and politicians accountable for their actions, particularly regarding questions of corruption or conflict of interest within government. Therefore, even though this right is highly important for all people, it is of particular significance for journalists and anyone working in the media, as it is their job to be the ‘watchdog’ of a healthy democratic society. This means that they must be allowed to write and report freely about, or criticize, the State and its institutions.

What forms and types of expression are protected?

This right covers different forms of expression: visual (pictures, photographs, images and video), audio (music, expressed words, etc.) and conduct (performance or action). Thus, this freedom covers both verbal and non-verbal communication. Expressions of different nature are protected: political, artistic, commercial or other. 

Freedom of expression protects ideas or opinions that may be controversial, disturbing or even shocking – because pluralism and tolerance are core values of a democratic society. 

note Not all types of speech are covered. For example, hate speech or incitement to violence are not granted such protection. 

What are the limitations to freedom of expression?

Freedom of expression is not absolute and thus can be subject to restrictions. The European Convention on Human Rights provides three criteria, which need to be satisfied for the restriction to be lawful:

1. The restriction is provided by law: there is a provision in national law allowing such restriction

2. The restriction is 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
  • for maintaining the authority and impartiality of the judiciary

3. The restriction is proportionate (not more than necessary to achieve the aim pursued)

These criteria have also generally been accepted and applied by other international human rights institutions and followed by many national decision-making bodies.

note One must distinguish the right to hold an opinion from the right to express an opinion. The former permits no exception or restriction – nobody can be prohibited from holding an opinion, even an unpopular one. What may be restricted is the expression of that opinion.

Who protects this right?

The State is the main guarantor of human rights. Its obligations are twofold: negative (obligations “not to do” something) and positive (obligations “to do” something). 

The negative obligation is to refrain from arbitrary interference with one’s freedom of expression, thus creating an environment allowing the free exchange of ideas and opinions. The positive obligation is to ensure the protection of freedom of expression from interference by public authorities or any other interference. This includes the establishment of effective mechanisms for the protection of journalists, a functioning system of courts, etc. 

International recognition of this right

Freedom of expression was included in the Universal Declaration of Human Rights of 1948, the first comprehensive list of human rights adopted by the United Nations General Assembly. 

Article 19 reads:

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.

This right is also included in international and regional human rights conventions.

In context

Sources

Last updated 24/06/2024