Freedom of speech & expression
Right to freedom of expression holds a special place in the system of human rights and freedoms and is sometimes referred to as the “right of the rights” (right that guarantees all other rights). The reason is simple: none of the other rights can be guaranteed without the right of freedom of expression and information; this right is of utmost importance for securing pluralism and self-governance in a democratic society.
According to Article 10 of the European Convention on Human Rights and Fundamental Freedoms, everyone has the right to freedom of expression and this right includes the freedom to:
- hold opinions,
- receive and impart information and ideas
without interference by public authorities and regardless of frontiers.
The right guaranteed under Article 10 of the Convention may be subject to restrictions 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 reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary, only in cases where such restriction meets the following criteria, all at once:
- Is prescribed by law;
- Serves the achievement of a legitimate aim;
- Is necessary in a democratic society.
Guarantees of the Freedom of Speech and Expression
In order to ensure the full realization of the right to freedom of speech and expression, it is important to have strong legislative guarantees in place, based on the following principles:
- Decriminalization of defamation – punishing defamation under a criminal law is 1) disproportionate to the purpose of compensating the damage inflicted to a reputation of a person; 2) might be used as a mean to suppress and silence critical opinion in non-democratic and transitional democracy countries; 3) has a “chilling effect”, when a journalist/citizen uses self-censorship out of the fear of punishment and refrains from publishing critical opinion or information. Therefore, it is important to keep defamation as a civil law violation and not a criminally punishable offense.
- Separation of a fact and an opinion – separation of a fact and an opinion in legislation and protection of the opinion with absolute privilege is one of the most important guarantees of the freedom of expression. Opinion is a value judgment, a viewpoint, a comment, as well as expression of ideas by any means reflecting the attitude to a person, an event or a subject that does not contain verifiable or deniable facts. A fact is always subject to verification and supported with evidence. An opinion is not protected if the fact which the opinion is based upon is essentially false and deliberately disseminated.
- Court guarantees – In case of court dispute related to the defamation published by a journalist, the defendant should be the owner of media not a journalist. This provision, on the one hand, guarantees protection of journalists, on the other hand, contributed to the establishment of self-regulating mechanisms in media. Media cannot be considered an appropriate defendant if it just technically ensured dissemination of the statement, improper defendants also are an indefinite group of persons or/and in which the claimant is not unambiguously identified and state and administrative bodies.
- Burden of proof – In case of a court dispute, burden of proof of restriction of the freedom of expression should lie with the complainant, who should prove that the respondent disseminated false facts and that this statement insulted complainant’s personal dignity and honour. Different standard is applied when a public official is implicated, in which case the latter should prove that there was an actual malice or reckless disregard: publication was made with advance knowledge of the falsity of the statement or that the respondent acted with reckless disregard leading to publication of the false fact.
- Protection of confidential sources – Without protection of the confidentiality, sources may be deterred from assisting the press in informing public on matters of public interests which is of vital to ensure self-governance in a democratic society. Disclosure of a confidential source can be compelled only with consent or by a court order in cases prescribed by law.
- Protection of whistleblowers – protection of whistleblowers means relieving a person from liability, if the disclosure of the secret protected by law is aimed at securing the legitimate interests of society and if the purpose of disclosure of a secret was protection of the lawful interests of the society, and if the protected good exceed the caused damage. As explained by the European Court, activities of a whistleblower may save the society from a greater damage than the non-protection of a specific information.