Freedom of Expression in the International Context
The First Amendment’s protection of freedom of expression became part of the U.S. Constitution in 1791. The French Declaration of the Rights of Man and of the Citizen, adopted by the French National Assembly in 1789, provides that ‘‘No one shall be disquieted on account of his opinions’’ (Article 10) and ‘‘That the free communication of ideas and opinions is one of the most precious of the rights or man. Every citizen may, accordingly, speak, write and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law’’ (Article 11). Otherwise, provisions for protecting freedom of expression have mostly come through the principal human rights documents that have been adopted or that have come into force only since World War II. This does not mean that countries without explicit rights documents have always failed to protect of freedom of expression. This is also not to suggest that freedom of expression has been universally honored since World War II by counties with explicit protective provisions. Indeed, either with or without rights documents, the number of national governments with serious breaches of freedom of expression no doubt has far exceeded the number of governments that has consistently protected that freedom. Nonetheless, it is important to remember that the great movement toward formal documentation of human rights after World War II began with the Universal Declaration of Human Rights (adopted in 1948). The freedom of expression provision of the Universal Declaration is contained in Article 19: ‘‘Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’’ Other post–World War II human rights documents with provisions protecting freedom of expression include the International Covenant on Civil and Political Rights (Article 19, came into force in 1976), the American Declaration of the Rights and Duties of Man (Article 4, adopted 1948), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 10, came into force in 1953), the American Convention on Human Rights (Article 13, came into force in 1978), and the African Charter of Human and Peoples’ Rights (Article 9, came into force in 1986). These provisions, mostly from the second half of the twentieth century, usually include qualifications or conditions set out in a separate paragraph, for example, the European Convention’s qualifications are set out in paragraph (2) of Article 10: ‘‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, 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.’’ Taken together, these qualifications represent what is known in the decisions of the European Court of Human Rights as the ‘‘margin of appreciation.’’ The margin has been described by Judge R. St. J. Macdonald of the European Court as involving the ‘‘delicate task of balancing the sovereignty of Contracting Parties (member-states of the Council of Europe) with their obligations under the [European] Convention.’’ As we shall see in the following, this balancing act has required the recurring attention of the European Court of Human Rights.
After proclaiming freedom of expression in Article 19(2), Article 19(3) of the International Covenant on Civil and Political Rights contains the proviso that: ‘‘The exercise of these rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary.’’ Thus, Article 19(3)(a) provides, ‘‘For respect of the rights and reputations of others,’’ and 19(3)(b) provides, ‘‘For the protection of national security or of public order, or of public health or morals.’’ Also Article 20 provides that ‘‘any propaganda for war shall be prohibited by law’’ and also for the prohibition by law of, ‘‘Any advocacy of national, racial, ore religious hatred that constitutes incitement to discrimination, hostility or violence.’’
It should be noted that in the United States, although the First Amendment’s protection of freedom of speech seems on its face to be absolute (‘‘Congress shall make no law abridging freedom of speech’’), the balance between freedom of speech and other values or interests has been worked out in decisions of the Supreme Court of the United States. In U.S. practice none of the first Amendment freedoms are absolute. The rights documents adopted after World War II all contain explicit provisos, perhaps recognizing both the recent excesses and outrages that led to World War II and to the tensions of the cold war, as well as the experience of the Supreme Court of the United States in working out the limits of freedom of expression.
What institutions are responsible for enforcing human rights in the international context? The most active and influential institution has been the European Court of Human Rights, which has ultimate responsibility for interpreting the European Convention on Human Rights. While that Convention first came into force in 1953, the first judges of the European Court of Human Rights were not appointed until 1959, when fifteen European Countries were obligated to follow the European Convention. Its first decision on the merits was not made until 1961. The European Convention now applies to forty-four member-states with an aggregate population of more than 800 million people. Contrasting to the European Court, the Inter-American Court that applies the American Declaration and the American Convention on Human Rights is a fledging institution, having become active in 1979, whereas the African Commission on Human and Peoples Rights, responsible for interpreting the African Charter is even more recent, being fully staffed only in 1989.
The freedom of expression articles of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) are broadly within the responsibilities of the United Nations Commission on Human Rights and the United Nations High Commissioner for Human Rights, and, in the instance of the ICCPR, the UN Human Rights Committee, but there is no United Nations agency or court with the authority to adjudicate cases involving alleged violations of freedom of expression and the direct or indirect power to enforce its decisions. The International Criminal Court, although not a UN agency was proposed under UN auspices at the conference that adopted what is known as the 1998 Rome Statute for the International Criminal Court. That court came into force on July 1, 2002, but it has exclusively criminal jurisdiction to try war crimes, crimes against humanity, genocide, and other crimes defined by the Rome Statute, rather than comprehensive authority of human rights.
Freedom of Expression under the European and American Conventions
As noted previously, the first substantive decision of the European Court of Human Rights was not made until 1961. The first Article 10 case before the European Court of Human was the 1976 Handyside case in which the prosecution of a publisher for having in his possession obscene books for publication for gain was upheld as having a legitimate aim of the protection of morals that was necessary in a democratic society. Among the other early Article 10 cases was Sunday Times v. United Kingdom (1979), the first case in which a violation of Article 10 was found by the European Court of Human Rights. That case is notable for our purposes because its shares its English common law origins with the United States and because its key issue, the legitimacy of an injunction (prior restraint) against publication of a newspaper article, also had been the subject of a case before the Supreme Court of the United States in the 1971 Pentagon Papers cases (New York Times v. U.S.).
The Sunday Times case involved a conflict between freedom of the press and the contempt powers of British courts applied to the press through an injunction to prevent the publication of an article that would have tended to ‘‘obstruct, prejudice or abuse the administration of justice.’’ The article that The Sunday Times proposed to publish was about the development, sale, and prescription of the drug thalidomide, which had resulted in the birth of a number of children with serious deformities. One feared consequence of the proposed article was that it would influence the payment of damages offered by the defendant pharmaceutical company for the suffered deformities. The House of Lords Appellate Committee, the court of last resort for the United Kingdom, sustained an injunction against The Sunday Times in 1973. It was this injunction that was held by the European Court of Human Rights (ECHR) in 1979 (by 11 votes to 9) to violate Article 10 of the European Convention on Human Rights. This was the first violation of Article 10 found by the ECHR.
The five law lords who had ruled against The Sunday Times had concluded that prejudgment of important issues through trial by newspaper should be prevented. While it was clear to all of the judges of the ECHR that the injunction was a violation of Article 10(1), the key issue was whether the injunction had a legitimate aim (‘‘maintaining the authority and impartiality of the judiciary’’ was included in Art. 10 ) that was ‘‘necessary in a democratic society.’’ Eleven members of the ECHR found that the injunction did not represent a pressing social need sufficient to outweigh the right to freedom of expression, whereas nine members disagreed. Their differences were over the ‘‘margin of appreciation’’ to be allowed national authorities by a transnational institution. The majority concluded that the exceptions to the freedom of expression protected by Article 10(1) must be narrowly interpreted. Freedom of expression was the primary concern. This ‘‘presumption’’ in favor of freedom of expression is like that expressed by the Supreme Court of the United States when it assesses intrusions on ‘‘preferred or fundamental freedoms’’ (U.S. v. Carolene Products Co.).
The second case in which the ECHR found a violation of freedom of expression was in 1986. It also involved a journalist who was sued in a private prosecution for defamation brought by Bruno Kreisky, then the outgoing Chancellor of Austria and President of the Austrian Socialist party. Austrian law provided for criminal punishment for any who ‘‘accuses another of possessing a contemptible character or attitude or of behavior contrary to honour or morality of such a nature as to make him contemptible or otherwise lower him in public esteem.’’ The defendant, Peter Lingens, had accused Kreisky, in a series of articles, of protecting former members of the SS for political reasons and of being too accommodating toward former Nazis, as well as citing his lack of tactful treatment of the victims of the Nazis. When, after extensive litigation in Austria, Lingens was found guilty and fined for his articles, he appealed to the ECHR. Once again, the violation of Article 10 (1) was clear, so the margin of appreciation the issue. Austria claimed that the prosecution was justified under the express provision of Article 10(2) to protect the ‘‘rights and reputations of others.’’ In holding that the criminal prosecution of Lingens was not ‘‘necessary in a democratic society,’’ and was ‘‘disproportionate to the legitimate aim pursued’’ (the protection of the reputation of others), the ECHR concluded that, ‘‘The limits of acceptable criticism are. . .wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and by the public at large, and he must consequently display a greater degree of tolerance.’’ As was true with the Sunday Times Case, the Lingens case has a U.S.-relevant U.S. precedent, New York Times v. Sullivan (1964), with much the same outcome.
The second Sunday Times Case (1991), along with its companion cases for the Guardian and the Observer, was another prior restraint case, this one involving the proposed publication by the three newspapers of articles about or excerpts from Spycatcher, Peter Wright’s book about his work as a senior member of the British Security Service (MI5). The House of Lords had first voted to continue a preliminary injunction against publication of the articles, pending a trial on the facts of the confidentiality and security issues involved. That was followed by the judgment in the House of Lords Legal Committee that The Sunday Times had breached a duty of confidentiality by publishing extracts from the book and was liable to account for its profits from the publication. No permanent injunction was issue because by the time of judgment, global dissemination of Spycatcher had destroyed any element of confidentiality. When The Sunday Times took its case to The European Court of Human Rights, that court noted that ‘‘the dangers inherent in prior restraint are such that they call for the most careful scrutiny on the part of the Court.’’ Consistent with its concern, the ECHR found, by a vote of fourteen to ten, that although confidentiality and national security justified an injunction against publication for the first year, after that the injunctions were no longer justifiable under Article 10(2). Once confidentiality had been lost by publication outside the United Kingdom, the only purpose in continuing the injunctions was to deter others who might choose to emulate Peter Wright or to demonstrate that the Security Service would not ‘‘countenance authorized publication.’’ Neither of these justifications was seen as sufficient to support a continuation of the injunction. It is interesting that the dissenters expressed even stronger protection for freedom of expression and even greater suspicion of prior restraints than the majority.
Consistent with its strong protection for freedom of expression, in 1992 the European Court of Human Rights in the case of Castells v. Spain wrote that, ‘‘Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders,’’ whereas the 1994 decision in Jersild v. Denmark, the ECHR held that punishing a journalist for assisting another person in the dissemination of information violated Article 10.
Among the most recent decisions of the European Court of Human Rights, the case of Hirico v. Slovakia (2004) involved a publisher and editor of a weekly publication that published a series of articles concerning a prosecution for defamation brought by a government minister against a poet who had claimed that the minister was a fascist. The articles included accusations against the judge who tried the defamation case, and the judge then brought proceedings against the publisher and editor of the weekly claiming that the articles had impugned his civil and professional honor and his authority as a judge. The publisher claimed the protection of Article 10, and once again the issue was the appropriate margin of appreciation. The judge’s position was complicated by the fact that he also was a political candidate on the list of the Christian-Social Union, a party that had well-known views on issues involved in the defamation case that had been discussed in the series of articles. In a very brief opinion, the ECHR found for the publisher, holding that the limits of acceptable criticism are larger when a judge enters political life. Moreover, it held that Article 10’s protection extends journalistic freedom to include the expression of opinions that may ‘‘shock or offend’’ and even ‘‘possible recourse to a degree of exaggeration.’’ The articles commented on issues ‘‘of general concern on which a political debate existed.’’ Presumably the European cases involving freedom of expression have focused on press freedom, because that is where the critical issues have arisen
To aid in the enforcement of Article IV of the American Declaration of Human Rights and Article 13 of the American Convention on Human Rights, the Office of the Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights developed a Declaration of Principles on Freedom of Expression that were approved by the Inter-American Commission in October 2000. These thirteen principles were especially concerned with access to information and prior censorship and with the use of violence or threats of violence to intimidate or prevent social communications.
Also, in a 1985 Advisory Opinion (OC-5-85), the Inter-American Court of Human Rights wrote that: ‘‘ [F]reedom of expression is a cornerstone upon which the very existence of a democratic society rests.. . .It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.’’
It is not surprising that Inter-American institutions should place such an emphasis on free access to information, when we take into account that one of the first substantive decisions of the Inter-American Court of Human Rights case in the 1988 case of Vela´squez Rodrı´guez involving the disappearance of a journalist. The Inter-American court there stressed that the investigation into his disappearance must be objective and effective. In its 1998 Annual Report, the Inter-American Commission of Human Rights wrote that threatening, intimidation, abduction or murder of journalists ‘‘seek to silence the press in its watchdog role, or render it an accomplice to individuals or institutions engaged in abusive of illegal actions.’’
Nihal Jayawickrama’s excellent review of contemporary application of human rights law, while focusing chiefly on the work of the European Court of Human Rights and the UN Human Rights Committee, reviews cases from Canada, India, Nigeria, Lithuania, and from the High Court of St. Vincent and the Grenadines that have viewed freedom of expression as being ‘‘indispensable to the operation of a democratic system.’’ These precedents suggest that the jurisprudence of the Supreme Court of the United States will be only part of the story of the protection of freedom of expression in the future. It will be a good thing if other countries have more success stories for the protection of freedom of expression through their own processes.
DONALD W. JACKSON
References and Further Reading
- Inter-American Commission on Human Rights. Report on Terrorism and Human Rights. Washington, DC, 2002.
- Jackson, Donald W. The United Kingdom Confronts the European Convention on Human Rights. Gainesville: The University Press of Florida, 1997.
- Jayawickrama, Nihal. The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence. Cambridge: Cambridge University Press. 2002.
Cases and Statutes Cited
- Castells v. Spain, 14 E.H.R.R. 445 (1992)
- Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976)
- Hirico v. Slovakis, 41 E.H.R.R. 300 (2004)
- Jersild v. Denmark, 19 E.H.R.R 28 (1994)
- Lingens v. Austria, 103 Eur. Ct. H.R. (ser. A) (1986)
- New York Times v. Sullivan, 376 U.S. 254 (1964)
- New York Times v. U.S., 403 U.S. 703 (1971)
- Sunday Times v. United Kingdom, 30 Eur. Ct. H.R. (ser. A) (1979)
- U.S. v. Carolene Products Co., 394 U.S.144 (1938)