Of all the human rights in the European Convention, the right to freedom of expression is the most overrated - Do you agree?
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.
This is a preview of the whole essay
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 individuals personally make use of freedom of speech. However, surely all benefit from a society which enjoys this right and the role it plays in protecting against the abuse of power, disseminating information, and so on. These factors come into play when interpreting or resolving conflicts between rights, as in the US debates over whether pornography counts as ‘speech’ or when considering possible limits to freedom of speech in cases such as incitement to racial hatred or the diffusion of state secrets.
“The way it is protected in the Convention is so riven with qualifications and exceptions as to render it essentially meaningless.”
6. The author of the question does not stop with a critique in the abstract. Whilst she is obviously not convinced by the capacity of freedom of expression to be of utilitarian good as a concept, for her, however, the criticism goes much deeper. She claims that the way in which the right has manifested in law has been so as to render the right ‘meaningless’, a result of the ‘qualifications and exceptions’ included in Article 10 of the Convention.
7. It is here that one can highlight the inherent contradiction in the quote of the question. On the one hand the author claims that it is ‘uncertain’ whether freedom of speech can be taken as a concept that can be used toward a public good. However instead of, as one might expect, the author advocating a careful and restrictive presentation of the right so as to counter any manifestation of the right’s ‘negative’ side she claims that there are too many restrictions and that by being so heavily ‘qualified’ the right becomes meaningless. Either she is first claiming that the right is inherently dangerous and then claiming that we should not limit its application to too great an extent, which would not seem to be a very logical approach. Or she is claiming that there should be no right to freedom of expression at all which would not be a very attractive approach either. It is my main contention that she is wrong on both points and that the freedom of expression right has an overriding potential to be used as a public good and that the Convention goes a long way toward reflecting this.
8. It is also submitted that the author of the sentiment in the question has overstated the extent to which the right is ‘qualified’. The restrictions placed upon the Article 10 right are that ‘the exercise of these freedoms...may be subject to…formalities, conditions, restrictions or penalties’. These are included so as to allow the State to still be able to legislate in areas affecting freedom of speech. The approach that the Convention usually takes, particularly with Articles 8-11, is to allow the right to be enjoyed by all except where the State decides to regulate. However, as a measure to guard against abuses of State power the Court adopts a three-part test so as to ensure that the right is being limited in a ‘fair and just’ manner. First, it determines whether the interference is in accordance with, or prescribed by, law, then it looks to see whether the aim of the limitation is legitimate in that it fits in with one of the expressed heads in the article, and finally it asks whether the limitation is in all circumstances necessary in a democratic society. Further to this the Court will allow only the minimum interference with the right in order to secure the legitimate aim. Article 10 also recognises the need to protect important public interests such as national security, territorial integrity, freedom from crime and disorder, health and morality, the impartiality of the judiciary and also certain individual rights too.
9. These considerations made by the court go so far as to render the right ‘meaningless’ according to the author of the question. Admittedly, there have been cases where the freedom of expression right has been ‘overridden’ by a paragraph two exception, such as, inter alia, the Klass case and Zana v Turkey. The important jurisprudential question one must then ask is does a right become meaningless once the Convention authorises a State to act contrary to that right? One might state that it is arguable, that if an individual has a breach of their Article 10 right authorised then surely there was little use in having the right in the first place!
10. However the more ‘realist’ approach is to accept that few rights come as ‘absolute rights’ and one would accept that there are times when it is wholly necessary for a State to pass legislation that does breach a Convention right, the legitimacy of which being founded in the tests which the Court will apply to any such legislation. For instance, if one is to look at the Handyside case, here the Court was called upon to consider whether the conviction of individuals who had published a reference book targeted at children of a school age containing advice on sexual and other matters violated the Article 10 right. Whatever one feels on the subject one surely would feel that this is an area to which the national authorities have a right to legislate, particularly when one has regard for the time and place in which the case took place (1970s England not being famous for its progressive approach toward sexual education). So it was that the Court upheld the UK’s decision on grounds that the limitation had been made so as to protect the public morality and was also justified on the other grounds of, inter alia, proportionality and necessity.
11. The importance issue in relation to the question is that the Article 10 right was not rendered useless after Handyside, not for the individuals concerned or for society at large. The author seems to be implying that the Article 10 right as a whole is ‘meaningless’ as a result of the restrictions but as part of the acceptance of the realist approach that the right can be restricted it then follows that it will not always be restricted and that Article 10 rights will often be able to be enforced. For instance, in Lingens the applicant succeeded in enforcing his Article 10 right so he could prevent himself being prosecuted for criticising the Federal Chancellor of Austria in his magazine.
12. It is an interesting aspect of human rights law and one that it is hard to find an absolute answer to. I am, however, reluctant to call any right completely meaningless when applicants have successfully relied upon it to provide a remedy for themselves, although I am willing to accept there might be times when a right might seem ‘meaningless’ to an individual.
13. The interpretation of many substantive articles of the Convention frequently involves a balancing exercise between the interests of the applicant and those of other individuals or the public as a whole. This applies particularly to freedom of expression. The sentiment in the question is an extreme one, using overtly pejorative (and one might say provocative) terms as ‘overrated’ and ‘meaningless’. It raises one important point in relation to the nature of an individual’s right once the Court has authorised a breach, is that right then useless? One can indicate numerous cases where the right has not been useless but that is not to say for that individual, at that moment the right was quite meaningless. However, the failure in the quote, aside from the inherent contradiction, is to be too pessimistic as to the potential of freedom of expression to be of definite public good. Most would accept that it has the capacity to be dangerous, and so the reason for stringent safeguards, but it is strongly submitted that the right has the overriding capacity for public good and has provided a foundation for many a democracy.
Taken from Handyside v United Kingdom, Judgement of 7 December 1976, Series A, No. 24; (1979-80) 1 EHRR 737, para 48
As the opening quote of this essay shows the importance of freedom of speech has been well stated in case law from the Handyside case through to less well known ones such as Muller (May 1988, Series A No. 133, 13 EHRR 212). Perhaps the author of the question is also referring to writers such as Dworkin (see footnote 3) and Raz (see footnote 4) who have famously championed the freedom of expression cause.
R. Dworkin “Taking Rights Seriously” (London, Duckworth 1985) 91, 199-200
J. Raz “Ethics in the Public Domain: Essays in the morality of Law and Politics”(Oxford: Claredon Press 1994) ch.3
Klass v Germany, Sep 1993, Series A No 269; (1994) 18
Zana v Turkey (App 18954/91), Nov 1995, 34 EHRR 97
Handyside v United Kingdom, Dec 1976, 1 EHRR 737
Lingens v Austria July 1986, 8 EHRR 103
My essay, at paragraph 7