Freedom of expression

Art 19 ICCPR / Art 11 CFREU / Art 10 ECHR

Obligations on states
● Positive obligation to undertake measures to ensure free circulation of inif
● Negative obligation to refrain from interfering with freedom of expression

Components of FoE
● Freedom to hold opinions, even if they offend or disturb the State/population
● Receipt and impartation of info and ideas
○ The press have a significant role as a public watchdog1

Application to key contemporary issues

Hate speech
● Handyside v UK: ““Freedom of expression constitutes one of the essential
foundations of [a democratic] society, one of the basic conditions for its progress and
for the development of every man. Subject to Art10(2), 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.”
○ Note abuse of rights are tempered by Art 10(2) and Art 17 in that rights
provided must not be used to destroy fundamental values of the Convention2.
Former restricts protection; latter excludes protection
○ Note difference between opinions that offend, shock, disturb (OSD) and
expressions which spread, incite, promote or justify hatred based on
intolerance
○ An ​interference3 with freedom of expression may be justified4 in such cased

1
“(...)the vital public-watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable
information may be adversely affected” (if journalistic sources are not protected) ECtHR, Goodwin v. UK, 27 March 1996

“Since 1985 the Court has frequently made mention of the task of the press as purveyor of information and “public
watchdog” ECtHR, Telegraaf Media Nederland Landelijke Media B.V. and others v.. The Netherlands , 22 November 2012
2
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or
perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater
extent than is provided for in the Convention.
3
“Formalities, conditions, restrictions or penalties”
4

1. Prescribed by the law

2. Follow a legitimate aim (exhaustive list)
3. Necessary in a democratic society
Necessity and proportionality tests
Margin of appreciation of State authorities taken into account
Existence or not of an European consensus also considered
Third party comments online
● Delfi AS v. Estonia: Holding Estonian news site Delfi liable for anonymous
defamatory comments posted online from its readers, even when they are removed
upon request, was not a violation of the Article 10
● MTE-Index v. Hungary5: ruled that domestic courts failed to properly balance the right
to freedom of expression and the right to reputation, and thus reversed the decision
and held that there was a violation of Article 10. ​More
● Pihl v. Sweden​: non-profit blog operator is not liable for defamatory users’ comments
in case of prompt removal upon notice. In its decision, the ECtHR has clarified the
limited liability of operators of websites or online platforms containing defamatory
user-generated content. The Court’s decision is also to be situated in the current
discussion on how to prevent or react on “fake news”, and the policy to involve
online platforms in terms of liability for posting such messages. Although the Court’s
ruling expresses concerns about imposing liability on internet intermediaries that
would amount to requiring excessive and impractical forethought capable of
undermining the right to impart information via internet, the decision in Pihl v. Sweden
itself guarantees only minimal protection for the rights of internet intermediaries and
users’ rights. ​More
● Smajić v. Bosnia and Herzegovina
https://globalfreedomofexpression.columbia.edu/cases/smajic-v-bosnia-herzegovina/

5
MTE published an article critical of a major real-estate website. A major online news portal managed by Index.hu Zrt (Zrt)
republished the article verbatim. Both publications generated comments that criticized the real-estate website and some
comments used vulgar phrases.

The company managing the real-estate website sued MTE and Index for injuries to its business reputation. It won in domestic
courts. However, the ECtHR
Access to Internet and Censorship
“User-generated expressive activity on the Internet provides an unprecedented platform for
​ engiz and Others v. Turkey)​
the exercise of freedom of expression” (C

Internet: crucial for freedom of expression?

Ahmet Yildirim v Turkey: Turkey violated Article 10 of the European Convention on Human
Rights (ECHR) when it blocked access to all Google sites because of one Internet site facing
criminal proceedings for insulting the memory of a former Turkish president. The court wrote
that the ​right to freedom of expression is two-fold​​, encompassing not only the right to
transmit but also to receive information, and that although Article 10 does not afford absolute
protection against prior restraint, restrictions on freedom of expression do require strict
judicial scrutiny.
Cengiz and Others v. Turkey​: Court found that the blocking of YouTube in Turkey violated
the right to freedom of expression. The case had been brought by law professors at different
universities who had, over a long period of time, been unable to access YouTube and who
claimed that this violated their right to receive and impart information and ideas. The Court
agreed, holding that YouTube is a unique platform for the dissemination of information,
especially with regard to social and political matters, and of great importance to citizen
journalism.
Kalda v. Estonia: ​This novel case decides an issue of prisoner internet access, and
specifically, the means through which information is obtained. ECtHR found that a prisoner
should have access to certain internet sites, even when the information contained in these
sites could be obtained through alternative channels of communication, because it was
difficult to obtain the information through alternative channels. The Estonian law allowed
access to the legal information contained in the sites and allowed prisoners limited internet
access.

The right to be forgotten (or not)

Google Spain v AEPD: held that an Internet search engine operator is responsible for the
processing that it carries out of personal information which appears on web pages published
by third parties.
The outcome of the ruling is that an Internet search engine must consider requests from
individuals to remove links to freely accessible web pages resulting from a search on their
name. Grounds for removal include cases where the search result(s) "appear to be
inadequate, irrelevant or no longer relevant or excessive in the light of the time that had
elapsed." If the search engine rejects the request, the individual may ask relevant authorities
to consider the case. Under certain conditions, the search engine may be ordered to remove
the links from search results.
NT1 and NT2 v Google 2018: ​EWHC giving its first decision on the “right to be forgotten”
ordered Google to delist search results referring to the spent conviction of a businessman
known as NT2 but rejected a similar request made by a second businessman, NT1. The
claimants had been convicted of criminal offences many years ago and complained that
search results returned by Google that featured links to third-party reports about the
convictions were inaccurate and/or old, irrelevant and of no public interest, or otherwise an
illegitimate interference with their rights. The claims were made under data protection law
and the English law tort of misuse of private information. The Court rejected NT1’s request
based on the fact that he was a public figure with a role in public life so that the crime and its
punishment could not be considered of a private nature, but was regarded as a matter of
public interest, specifically a business crime, its prosecution and punishment. Moreover the
Court said that NT1 had not accepted his guilt, had misled the public and the Court, and
shown no remorse. In contrast, the Court upheld NT2’s delisting claim, reasoning that his
crime did not involve dishonesty, his punishment had been based on a plea of guilt, and
information about the crime and its punishment had become out of date, irrelevant and of no
sufficient legitimate interest to users of Google to justify its continued availability.

The Court granted NT1 permission to appeal: “It is quite likely that there will be more claims
of this kind, and the fact that NT2 has succeeded is likely to reinforce that,” the Judge said.
See [78]

Google v CNIL ​(pending CJEU) 2017/2018: Whether rtbf extends beyond domestic territorial
domain. Is the internet borderless?
https://dailycaller.com/2018/09/24/ways-eu-changing-internet/

● The right to be forgotten or the right to rewrite history?

● Right to be forgotten needs to be tempered by freedom of expression (receipt and
impartation of information and ideas)
● Does the distinction between NT1 and NT2 have legal fixability?