Course 14

Question 1

To what extend under the European convention is freedom of expression protected?

Answer 1

• Freedom of expression: art. 10: important that the freedom of expression is not only a question of the law, so related to the societal dimension.
  
  • Discussion on cancel culture.
  • If you write a book but no one wants to publish it = this is not a matter of an infringement on your freedom of speech or expression.
• There is no such thing as a subjective right to being heard, to being published but we do need a plurality of viewpoints, wide spectrum of ideas and voices. Sometimes you need vulgar to spark some debate.
• Having a robust culture of freedom of expression –> maybe the law is not very helpful with that because the law also gives the instruments to reduce that spectrum:
  
  • As a society you lose a lot if you do not give airplay to things you do not want to hear.
    *

Question 2

Why exaclty do we have the freedom of expression?

Answer 2

• Justification is often: rationalities for having that freedom are fundamental to understand why our legal system goes in one direction rather than in another and why the courts behave in the way that they do and why there is criticism.
• Freedom of expression has some very particular rationales and their worth being recalled before going into the details of the case law.
• Article 10 is not an absolute right but it is really important. 3 main arguments for the freedom of expression:
  
  1. Epistemological argument
  2. Democracy
  3. Self-expression

Question 3

What is the epistemological argument?

Answer 3

• It helps us get to know things better: John Stuart Mill = skeptical philosopher: it is hard to know the truth but you have to accept that you can make mistakes. Even acting in bona fide, you may do things that are terribly wrong: you may be convinced you are suppressing false information = good service to the audience but:
  
  • We have to be careful if we are not 100% right because we could always be wrong = be modest about knowlegde.
• This is of course related to ideas that through debate you learn = getting access to knowledge, does not exclude that it is a valuable idea to conceive a learning and therefore searching the truth as a dynamic process based on statements, contradicting statements, readjusting positions, confirming perhaps them, but engaging in a dialogue. Through that dialogue, forcing perhaps participants in the debate to reconsider their positions. That is how science functions. That is the idea of the debate. Sometimes the experts said things that appeared to be wrong later. But that’s not a problem. Through the debate we move on and get better understanding. If we are interfering with that debate, we may pay bad service to the flourishing of knowledge.
  
  • Prof has a problem where books/information is taken out of the curriculum. HIstory is not only made out of glorious pages, also dark pages too.
  • Careful for self-censorship.

Question 4

What is the warning of Mill?

Answer 4

• Warning Mill: “if we simply aren’t able anymore to start a discussion for fear of the consequences in terms of sanctions, we may be just repeating official truths that are imposed on us and forced so to say by the law, but they do not become truths that we have gained and to which we adhere because we are profoundly convinced but because there imposed on us. Mill calls that dead dogmas. We are just repeating dead dogmas without force and conviction because the alternatives aren’t possible under the law.”
• Our beliefs, our ideas and our conceptions are so much more lived and therefore we are so much more convincing in the debate whenever we acquired them through an intellectual process rather than we say it because we are forced to say it. Think for yourself. Come up with your views, with your position, with the things you stand for and not because it has been imposed on you by authorities. This is the argument of truth.

Question 5

What is the connection between freedom of expression and democracy?

Answer 5

• Goes into 2 directions:
  
  • There is no democratic society if there is no freedom of expression. The democratic debate is at the heart of what we are = fundamental.
    
    • That’s why: freedom of expression, the right to demonstrate = to make clear what is important to us. People should have equal rights to make their point, no matter what the point is.
    • Agenda setting: exercising a kind of influence on politiicians.
  • Also the press: you need information about what politicians are doing: you need critical media. That is why it is so important to have independent press = central element in the nexus of democracy.

Question 6

Freeedom of expression as self-expression?

Answer 6

• Self-expression is a rather personalized interest, contrary to the first two rationales that have a collective dimension as well.
  
  • Self-expression: the way you talk, the way you dress,… the way you express yourself. intimately related to who we are = important that you have a way of unencumbered way of expressing yourself.
• But always the balancing exercise: if you complain about your boss on social media, he may fire you to it is important that choices entail consequences and using your rights and freedos may entail consequences that are very negative:
  
  • The law will not always be the most appropriate tool to avoid negative consequences.

Question 7

What is the ratione personae of freedom of expression?

Answer 7

• We all have freedom of expression but there are people with higher protection = journalists/the press: they are in a preferred position because they are addressing issues of general interest.
• Also audiovisual media = direct impact on the lives of the audiance.
• Internet still ver new: Delpi caseof the court: it is thus not clear how rules should be applied compared to other media, how rules are related.

Question 8

What is the ratione materiae of freedom of expression?

Answer 8

• Very wide area of expressions is covered by freedom of expression.
• Some areas have “special protection”:
  
  • Political debate = issues of general issues.
    
    • Contrasted with commercial discours = low value speech: eg. advertising (so also companies can enjoy freedom of expression).
• Limiting your right to speak: eg. advertising for alcohol: if a company wants to bring a case to the ECHR: will probably not work because the health of citizens is a legitimate aim.
• Limiting your right of speak in an area that does not have a big impact on the quality of our democracy: probably not any problems.
• Then again, it becomes difficult to define the protected area. But that’s not what the court is doing, it leaves space for national variety and would rather concentrate on interferences, which is in borderline cases something quite tricky.

Question 9

What underlines art. 10?

Answer 9

• Article 10: only article that refers to duties and responsibilities = not an autonomous meaning, in the sense that states can’t restrict freedom of expression on the mere basis that there are duties and responsibilities. The importance is symbolic.
  
  • It is not because you are entitled to say anything that it is a good thing to do that = moral appreciation.
  • You have that right but also need to be aware of your obligations.

Question 10

What does the right of expression protect?

Answer 10

• Right to receive information: ideas and opinions: important rights such as the right to access to governmental information is based on the idea that u have the right to receive information:
  
  • Access to the internet, but also prisoners = do they have access to the internet or Turkish students where some sites are blocked?
• The idea is to hold ideas and the right to express those ideas.
• Third sentence: possibility of having licensing systems: goes back to the era of state monopolies etc. But not an independent restriction clause = still needs to pass the three step test.

Question 11

Is freedom of speech absolute?

Answer 11

• No! not in the way that it is in the US: no society has absolute freedom of expression and it would be impossible to defend that:
  
  • Eg: hate speech, denialism, racism, homophobia,…
• But freedomof religion. Also not to talk about life threats.
• You have to accept that there are some restrictions that may be inspired by societal needs. That is that: no matter how tolerant, how liberal, how open-minded you are when it comes to freedom of expression, there will always be a situation in which u will be tempted of even forced to restrict is. Restriction is the elephant. The point is that the drafters said: we have to restrict the restrictions.
• Again: classic 3 step process:
  
  • Lawfulness
  • Legitimate aim
  • Necessity test

Question 12

What are the positive obligations under art. 10?

Answer 12

• Growingly more important: system of protection of whistle blowers, systems of access to information, protecting the lives of journalists, writers,…
• Complete overlap betweena rt. 10 and 2: you need to be protected.
• Things are changing when it comes to the governments to favor media pluralism.

Question 13

What is th case Lingens vs. Austria

Answer 13

• 1986: very important case.
• Difference between value state judgements and statement of facts:
  
  • Statement of facts = you have a factual basis: then that is not your freedom of expression.
  • Value judgements: a bit more complex: if you express a value judgement, there muts be somehow a link to factual basis, but on your appreciation of these facts, there is much more freedom.
• Lingens expresses this idea of democracy and that the press if for a citizen the means to assess the behavior of its politics: press = watchdog of the democracy.
  
  • Press is entitled to a certain dose of exxageration = extra breathing space for journalists. The press is allowed to cross the line a little bit = they should not self-censorship.
• This does not mean that the court accepts everything from the press: they must still act in good fath because of the special status in the democratic society. This status comes with some extra rights, duties and obligations.
  
  • Often comes back with the honor and reputation cases: the more someone is in the picture, the more someone has an official capacity, an important role in society, the more he/she should accept public scrutiny by the press but it should not be excessive.

Question 14

What is the case goodwin?

Answer 14

• Protection of the press is also mirrored int he way that the Court protects journalistic sources, because the free flow of information had to be protected.
  
  • Mirrored by the case law where confidential information and leaking confidential information is concerned.
  • Here protection of sources
• Case in Breda where the journalist went too far because he published a file including correspondence with the investigative judge.
• Also GUIA case: matter of whistle blower: the court will accept that sometiems it is allowed to leak confidential informatin, but what matters is the context:
  
  • So have the questions been addressed with the proper institutions? Was the information correct? What was the intention? Was it a matter of really denouncing things that go wrong or was it just because some people wanted to be in the picture.

Question 15

What is the protection of sources?

Answer 15

• Many cases: Goodwin case, Ernst vs. Belgium, Luxembourg, Saloma vs. Netherlands.
• Idea is: the free flow of information should be protected. Without a protection of sources, the information may be blocked/dry.
• So the problem is, what is often called ‘journalistic privilege’ in the anglophone world, in reality is not a privilege. It is not an extra right for journalists, it is a right that goes directly at the heart/interest of the citizens/audience. Because without a decent protection of journalistic sources, people would not be eager to go to journalists and explain the information they know. That would be a problem for a journalist, however it would be even a bigger problem for us as a society.
  
  • If journalists can’t publish any more proper, relevant, urgent articles, the consequence may be that we as readers do not get any information anymore; that is a very sad thing. It’s not only the journalist that is losing, it’s also us as an audiences that are lacking information.