Implementation of the freedom of speech – Extended scope

The conditions under which freedom of expression applies are ambivalent.

• On the one hand, it is considered fundamental, since it conditions the exercise of other freedoms. Thus, superior courts, both supranational and national, enshrine its importance in similar terms. For the European Court of Human Rights, freedom of expression “constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for each individual’s self-fulfilment.”.
• On the other hand, the rules which solemnly establish its principle by giving it a wide scope of application also provide it with numerous possibilities of limitations, which are also potentially very extensive and widely used.

The scope of freedom of expression is today designed very broadly. Indeed, it is considered to be involved not only when an individual broadcasts his thoughts directly using the usual communication techniques, but also whenever his behavior can be interpreted as implicitly revealing an intellectual option. In addition, it is accompanied by corollaries, themselves at the origin of new extensions.

Means of direct dissemination

The exercise of freedom of expression is not limited to the use of traditional means such as speech, writing and print, but also encompasses all modern telecommunications techniques. Thus, broadcasting activities must also guarantee it through adequate organization and functioning, a requirement imposing, for example, that they no longer fall under a State monopoly, considered as a restriction “unnecessary in a democratic society” according to a judgment of the European Court of Human Rights concerning Austria.

The Court applies the same principles to Internet access, considering that its abusive blocking violates the freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. According to some authors, such as the specialist in digital networks, the Internet is even in history the first real means of making freedom of expression effective, which previously remained largely virtual.

Implicit modes of expression

It is possible that without using the traditional techniques of communication allowing him to express his ideas expressly, an individual externalizes them by his only behavior. Thus, certain actions such as participation in a meeting, a demonstration, an association or a teaching activity, the creation and exhibition of a work of art, the wearing of clothing or distinctive sign, or even an act of provocation such as contempt of the flag or the national anthem, can be claimed as the implicit affirmation of convictions or choices, therefore as methods of exercising freedom of expression.

This argument is generally considered subsidiary, even superfluous, if the behavior is directly linked to other specifically guaranteed rights or freedoms: it is these which are then mainly at issue. If this is not the case, the reference to freedom of expression turns out to be decisive. For example, it is to this that the European Court of Human Rights has linked the exhibition of a controversial painting, considering that “(t)hose who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society”. Hence the obligation for the State not to encroach unduly on their freedom of expression.

Corollary rules

Freedom was conceived more broadly as extending to the dissemination of any message, even simple information, and as implying not only the right to send it, but also the right to receive it. Since then, its scope has been clarified by the texts, and above all supplemented by a certain number of extensive principles of interpretation from both national and supranational jurisdictions, which present them as corollaries making it possible to guarantee its efficiency. Thus, throughout its case-law, the European Court of Human Rights has had occasion to admit that freedom of expression applies to the publication of photographs, that the notion of ” information” could extend to the disclosure of elements of the private life of persons of public notoriety, and that the right to affirm one’s convictions also implied the right to attempt to convince others to adopt them.

Of these corollaries, the most important is that of pluralism, first mentioned incidentally, with tolerance and a spirit of openness, as a condition of a democratic society by the ECtHR, then later elevated to the rank of rule in its own right, “of which the State is the ultimate guarantor”.

This principle first requires that freedom of expression applies regardless of the content of the message broadcast. Thus, for the ECtHR, 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”. Similarly, for the Supreme Court of the United States, one of the main functions of freedom of expression is to invite debate. It can truly serve this noble purpose best when it causes a state of turmoil, creates dissatisfaction with established situations, or even incites people to anger.

Secondly, pluralism requires that the concrete possibilities of expression be open without discrimination to all tendencies.

While all these factors seem to give freedom of expression an almost unlimited scope, its exercise is nevertheless likely to be closely regulated. Also, in a socio-political context generally favorable to the promotion of freedoms, it is the multiple restrictions resulting from this framework that above all give rise to discussions and comments.

(Includes texts from Wikipedia translated and adapted by Nicolae Sfetcu)