Of all the human rights in the European Convention, the right to freedom of expression is the most overrated - Do you agree?

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Byron James                Timed Essay: Time Taken 3 Hours

Question 4: 2002 Exam paper        

“Of all the human rights in the European Convention, the right to freedom of expression is the most overrated. Even when viewed in the abstract, free speech is an uncertain public good, but the way it is protected in the Convention is so riven with qualifications and exceptions as to render it essentially meaningless.”

Do you agree? Give reasons for your answer.

“Article 10 constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and development of every man”

1. The Article 10 right of freedom of speech is very broad encapsulating the “the freedom to hold opinions and receive and impart information” with limited interference from the state. The broad application of the term is also extended to what constitutes ‘expression’, which the Court has taken to mean expression through almost any medium. The Court has been able to apply the article with such width, one could argue, as a result of the safeguards that are built into the article in its second paragraph. It is through these safeguards that the Court can protect the freedom of speech whilst also recognising the special “duties and responsibilities” that arise when dealing with something as potentially powerful as freedom of speech.

2. It shall be contended in this essay that the right of freedom of speech is far from ‘overrated’, contrary to the sentiment in the quote in the question, though it is admitted that there is some occasion when a right might well be ‘meaningless’. As a secondary point it shall also be submitted that the safeguards in the Convention are a prerequisite to any such right and must take a form similar to that in the Convention.


“Even when viewed in the abstract, free speech is an uncertain public good”

3. The question contends that the capacity of article 10 to be of utilitarian good is not as well founded as is popularly made out. The author of the question even goes as far as to state that this opinion is not just based upon an assessment of how the right has been articulated in the Convention and case law but also a critique of it as a concept.

4. It is strongly contended that freedom of expression, as a right in abstract, at least has the potential to be applied to benefit of society. As a concept one can easily envisage how it can be used to promote democracy, uncover abuses and advance political, artistic, scientific and commercial development. The question concentrates on the rights incapacity to be used toward a public good, perhaps its author is not denying the potential of the right to be used in a utilitarian manner but rather that this potential is outweighed by its capacity to be abused. Whilst one easily admits the inherent good in freedom of expression one must also admit that it can, and has, been used to incite violence, spread hatred, and impinge upon individual privacy and safety. The author of the question seems to be arguing that these negative ‘abuses’ will always be present to the extent that they counter and overshadow the positive.

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5. However, rights cannot be isolated from collective decisions of a utilitarian or communitarian nature. Rights are sometimes claimed to protect the individual from tyrannous majorities by ‘trumping’ decisions made in the public good. However, such social considerations are intrinsic to how we define and interpret rights. Indeed, rights are generally valued not because of their worth for particular individuals, for whom they may be of no interest and burdensome, but because of their contribution to certain collective goods and the more diffuse benefits that result from the community in which they exist. For example journalists and politicians apart, few ...

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