Introduction to Human Rights | Lesson 9: “Freedom of Expression”


Welcome all of you to this class on freedom
of expression. My name is Tomás Vial and I am a law professor at the Diego Portales Law School and a researcher at its Human Rights Centre. What is freedom of expression? And why it
is an important right?, are the main questions that I will explain today. This liberty is
understood as an essential part of a democratic society and for that reason has been and it
is bitterly contested in every society today. In fact, it can be said that without a robust
protection of this liberty there is no democracy. In this class I shall first refer to the sources
of freedom of speech in international human rights law as well as to which aspects are
covered by it. I will also explain which types of discourse are protected and which not.
Then I will summarize the main justifications given for protecting speech freedom. After
that, I will deal with the main restrictions to which the freedom of expression may be
subjected. Freedom of expression is guaranteed in the
main human rights instruments, starting with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Both documents recognize
this right in their respective articles 19. Also the main regional human rights instruments
contain a clause on freedom of expression. Concerning freedom of expression, the case
law of the regional human rights courts, such as the European Court of Human Rights and
the Inter-American Court of Human Rights, is very important. The content of the freedom of expression or
opinion is shaped by the text of treaties and also from the case-law of international
human rights tribunals. Freedom of expression is understood as implying, on the one hand, both the liberty to hold opinions and impart information and ideas, by any means without
interference; and the right to seek and receive information and ideas. Currently it is also understood to include
the right to have access to information produced by the State, which implies that governments
have an obligation to provide the public information requested by any person, with some qualified
exceptions. From the text of international treaties, also
from international case law, it is clear that the means for communicating ideas and information are wide. They include oral, written and printed expressions, as well as non-verbal language,
or expression by any other means. The latter also applies currently to all forms of digital
and electronic media, such as radio, television and the internet. The types of discourse that are protected
are also broad. It is clear from the case-law of the main human rights tribunals that the
expressions protected are not only the ones that are harmless. As the European Court of
Human Rights said in the landmark case Handyside v. United Kingdom, “it is applicable not
only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock or disturb the State
or any sector of the population”. However, as we shall see, this broadness does
not mean that all speech is protected, because freedom of expression is also subject to some
limitations and restrictions. Why to protect expressions that are deemed
for most people as offensive or plainly wrong? The freedom of expression theory and international
case law have constantly grappled with this question. A classical rationale for protecting speech
even in cases where a majority of people think it should be limited or prohibited is that
in order to discover the truthfulness of an assertion, in moral, religious, political
or scientific matters, it is best to allow people to freely argue criticize and debate. A second justification is that freedom of
expression is essential for democracy, because it allows citizens to discuss matters of public
interest or to criticize the government, thus contributing to making it more accountable
to citizens, to illustrate the electorate, and to control the abuse of power. A third rationale is that freedom of expression
is essential for human development. For people to be able to form their own ideas and to
communicate with others, in a sincere way, an environment free of interference and censorship
is needed. Freedom of expression is also necessary for
the exercise of other rights inherent to the democratic form of life, such as political
participation, association and reunion. Also, a robust regime of freedom of expression
is an essential tool for combating corruption both in government and in the private sector. Finally, without freedom of expression a free
market cannot properly work, because fair competition means that both consumers and
producers have access to all the relevant information, in order to make the best decisions. All these reasons show why protecting freedom
of expression is so important. In a word, this liberty is a necessary condition for
the effective protection of human right as a whole. However, freedom of expression is not an absolute
right. As will be seen in a future class of this course, there are legal grounds for imposing
restrictions on certain rights, specially liberties, when they are strictly necessary
for the functioning of a democratic society. They are explicitly considered in the international
human rights treaties previously mentioned. In general, these limitations are justified
for the protection of: Firstly, the rights of others. For instance,
the right to privacy, to reputation, the protection of minors or the right to a fair trial.
Secondly, national security or public order. On this basis restrictions may be imposed,
for instance, on the publishing of military secrets, or for the sake of law enforcement. Another example is the regulation of speech in public spaces. Thirdly, the authority or impartiality of the judiciary.
And finally, certain important social values, such as public health and public morals. Nevertheless, all restrictions on freedom
of expression must be necessary, proportionate and in consonance with the requirements of
a democratic society. It is incumbent upon the State to demonstrate that these requirements
concur. Hate speech and war propaganda are directly
forbidden by international human right law. Hate speech is the advocacy of national, racial
and religious hatred that constitute incitement to discrimination, hostility or violence. For hate speech to be prohibited it does not suffice a hateful expression. It is also required
the advocacy of wrongful actions against a person or a group. Freedom of expression may also be suspended
or derogated in case of certain grave emergencies which threaten the security or survival of
a State. Still, in such hypotheses it is required that the suspension be authorized by law,
that is necessary, proportionate and in consonance with the requirements of a democratic society Though international human rights law allows
certain restrictions on the freedom of speech, it looks with a strong suspicion the possibility
that the State may resort to censorship. Only in very narrow cases, such as the prevention
of the release of information that can produce a serious and irreversible damage to an important
public interest, censorship might be justified. Even then, it may only be authorized by a
judge, after a fair hearing. One of the most frequent conflicts between
freedom of expression and other rights is that produced with privacy and personal reputation.
Privacy is generally understood as implying that there is some type of information that
is under the control of the individual. Examples are medical information or information about
sexual life. It is not permissible to divulge such information without the explicit authorization
of the person affected. Also, speech sometimes can seriously affect
reputation or the right to honor. In both circumstances, the general principle is the
limitation of that speech and the imposition of some type of sanctions or remedies. However,
this rule has also exceptions, confirmed by international case-law, such as if the information
serves a public interest. For instance, when there is information on the health of an important public official, it is understood that the media has the right to inform that, and the
public to know it, because that fact can affect the fulfillment of her or his public duties. It has also been considered that regarding public officials, politicians and people of
social influence, a weaker legal protection of their reputation is justified, because
that allows a robust and open debate on issues of public concern, free from the threat of
sanctions. Please visit the website www.moocchile.com
and thank you very much.

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