To what extent can the right to freedom of expression be legitimately restricted | Example Law Dissertation

ABSTRACT

 The main purpose of this paper is to address the pertinent scopes and restrictions prevalent to exercise the right to freedom of expression in this modern age. For this purpose, the paper will refer to certain regional and international instruments along with discussion of relevant cases. However, it will cover the historical context of the right to freedom of expression in relation to democracy, autonomy, and community. Besides, to understand the extent and limitation of the right to freedom of expression this paper will consider all the major international human rights treaties. Focusing on the restrictions to the right to freedom of expression, this article will evaluate the current restrictions to this particular right discussing the scopes of some of the speeches such as contemptuous speech, seditious speech, hate speech, obscenity, defamatory speech, hate propaganda, libel and slander, fighting words etc. Finally, this research descriptively discusses the elements of three-part test which is recognised for restricting the right to freedom of expression. This particular test includes that in order to limit the right to freedom of expression, the restriction must be “provided by law”, it must “pursue a legitimate aim”, and it must be “necessary in a democratic society”.

CHAPTER I

BACKGROUND AND CONTEXT

1.1 Introduction 

The right to freedom of expression is regarded as one of the most significant rights for a democratic country for the development of its people.[1] This fundamental right has been emerged as an essential one through the passage of time. However, if we trace the modern root of this right, it can be found that it came into being by its recognition under the 1968 English Bill of Rights and subsequent debate within the Parliament in the 17th century.[2] Further, this right was prolonged by two succeeding instruments i.e. the United States Bill of Rights[3] and the French Declaration of the Rights of Man and the Citizen, 1789.[4] However, it has finally been recognised by the first international instruments namely the Universal Declaration of Human Rights (UDHR), 1948 which is now regarded as a source of customary law.[5]

As regards this right, Mr. Justice Cardozo very lucidly stated in the case of Palko v. Connecticut,[6] “[f]reedom of thought and speech... is the matrix, the indispensable condition of nearly every other form of freedom.” Nowadays, it has become a form of historical development of political, social, and educational institutions of every society.[7] As a consequence, the proper upholding and safeguard of this right pave the way of developing the representative democratic system in a way of establishing pluralism, tolerance, and broadmindedness among the people.[8] The right to freedom of expression is related to many other rights such as the “right to information,”[9] the “right to share,”[10] the “freedom of press,”[11] the “freedom of opinion”, the “right to freedom of religion,”[12] the “right to know,” the “right to privacy”[13] etc. Without exercising the right to freedom of expression with satisfaction, these rights cannot be exercised. The people have the right to share their ideas and views complying with certain restrictions as documented under many regional and international instruments.[14] Therefore, it is said that even though this right is an essential one, it is not an absolute right.[15]

 

It is very obvious and usually expected that the right to freedom of expression should not necessarily include the right to say whatever an individual person wishes and/or pleases to express in an ordered society. For example, with certain exceptions seditious speech, hate speech, obscenity, defamatory speech, hate propaganda, libel and slander, fighting words are mostly prohibited in many countries.[16] So far, it has been a settled principle that in every restriction to the right to freedom of expression, there must be advance and express ways as to how and when this right is restricted.[17] Under the regional and international instruments and case precedents, it has been recognised that to determine legality of restriction or interference of this right by the state, some criteria must be fulfilled such as the restriction must be prescribed by law; must “pursue a legitimate aim”; and must be “necessary in a democratic society”.[18] Besides, this right needs to involve the balancing of competing public interests. There must have a balance against public health and safety considerations including public interest.[19] It has been proven that striking the right balance between the freedom of expression and its restrictions is difficult both regionally and internationally.[20] Truth be told, in both well-established democratic countries as well as undemocratic countries, it is really a difficult task.[21]


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[1] Dawn C. Nunziato, ‘Freedom of Expression, Democratic Norms, and Internet Governance’ [2003] 52 Emory Law Journal 187.

[2] Gudmundur Alfredsson & Asbjon Eide, The Universal Declaration of Human Rights: A Common Standard of Achievement (1st edn, Martinus Nijhoff Publishers, 1999) 393.

[3] Later it was added to the United States Constitution in 1791.

[4] Alfredsson & Eide (n 2).

[5] Ian Brownlie, Principles of Public International Law (7th edn,Oxford University Press, 2003) p. 379.

[6] [1937] 302 US 329.

[7]Retail, Wholesale andDepartment Store Union v Dolphin Delivery Ltd [1986] 33 DLR 174-183, McIntyre J, Supreme Court of Canada; Gilbert Marcus, ‘Freedom of Expression under the Constitution’ [1994] 10 South African Journal on Human Rights 140, 141.

[8] Lord Denning, ‘The Spirit of the British Constitution’ [1951] 29 Canadian Bar Review 1180.

[9] Dirk Voorhoof, ‘The Right to Freedom of Expression and Information under the European Human Rights System: Towards a more Transparent Democratic Society’ [2014] European University Institute (EUI) Working Paper RSCAS 1, 2.

[10] International Standard Series, ‘The Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age’ [2013] Free World Centre 1, 2.

[11] Daniel Malan Pretorius, ‘Freedom of Expression and the Regulation of Broadcasting’ [2006] 22 South African Journal on Human Rights 47, 49.

[12] Note, ‘Freedom of Expression under State Constitutions’ [1967-68] 20 Stanford Law Review 318, 329.

[13]George WEI Sze Shun, ‘Milky Way and Andromeda: Privacy, Confidentiality and Freedom of Expression’ [2006] 18 Singapore Academy of Law Journal 1, 1-2.

[14]Handyside v.United Kingdom (1976), Application No. 5493/72


[15] Neil F Douglas, ‘Freedom of Expression under the Australian Constitution’ [1993] 16 UNSWLJ 315, 316.

[16] Toni M. Massaro, ‘And Freedom of Expression: The Hate Speech Dilemma’ [1990-91] 32 William & Mary Law Review 211, 212.

[17] Yves De Montigny, ‘The Difficult Relationship between Freedom of Expression and Its Reasonable Limits’ [1992] 55 Law & Contemporary Problems 35, 38.

[18]Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 29(2); International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 19(3), art 22 & 21; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (ACHPR) art 9, 10 & 11; American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) (ACHR) art 11, 15 & 16; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (adopted 4 November 1950, entered into force 3 September 1953) (ECHR) art 10(2); European Convention on Human Rights  (ECHR) art 11.

[19] Steven J. Heyman, ‘Righting the Balance: An Inquiry into the Foundation and Limits of Freedom of Expression’ [1998] 78 B.U.L.Rev. 1275.

[20]  Jamie Frederic Metzl, ‘Rwandan Genocide and International Law of Radio Jamming’ [1997] 91 AM. J. INT’LL. 628.

[21]N.Y. Times Co. v. United States [1971] 403 US 713; Gitlow v. New York [1925] 268 US 652; Schenck v. United States [1919] 249 US 47; Kathleen Mahoney, ‘The Canadian Constitutional Approach to Freedom of Expression in Hate Propaganda and Pornography’ [1992] 55 Law and Contemp. Probs. 77; Montigny (n 17) 38.  

 

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