Kentavius Street Jersey When Can Freedom of Expression Be Curtailed? - Caleb Corneloup

When Can Freedom of Expression Be Curtailed?

Written by Caleb Corneloup

 

This blog will discuss freedom of belief and freedom of expression, with a focus on when the freedom of expression can be curtailed. There will also be a closer examination on hate speech regulations created by states for the protection of the rights and reputation of others.

 

The right to freedom of opinion and expression is protected under Article 19(1) of the ICCPR. Freedom of opinion has no limitations and applies to all subjects and beliefs.[1] Article 19(2) states that the freedom of expression includes the right to impart ideas and beliefs through words, actions, print, social media, art or any other form of media.2 Freedom of expression is the touchstone of all other rights and there can be no ultimate protection for any other rights without the protection of the right to freedom of expression.[2] If a society has no freedom of expression, then it’s a dictatorship.

 

According to Article 19(3) of the ICCPR, there are duties and responsibilities attached to this right and therefore states may regulate or restrict certain kinds of expression. Laws restricting freedom of expression must pass the strict criterion set forth in Article 19(3) of the ICCPR.[3] These restrictions must only be made by law, and they must be necessary to fulfil legitimate ends and the means used to achieve those ends must be proportionate. Legitimate ends include the protection of the rights and reputations of others, national security, public order, public health and morality.

 

Laws which prohibit speech that incites hatred, ridicule or serious contempt for persons based on religion, sex, sexual orientation and political beliefs are examples of legitimate restriction for the protection of the rights of others. However, it is important to accept that not all offensive speech is hate speech. In Handyside v The United Kingdom, the court stated that the right to “shock, offend and disturb” was an inherent element of freedom of expression. Furthermore, courts have frequently stated that laws restricting offensive or insulting words must be construed narrowly and applied to conduct which can be “objectively calculated or likely to cause or arouse significant anger, significant resentment, disgust, outrage or hatred”.[4]

 

In Europe a Pentecostal pastor preached a sermon to his own congregation, concerning the sinfulness of homosexual behavior, based on a number biblical texts.[5] He was acquitted of the charges brought against him because a conviction would have violated his human rights under Article 10 of the European Convention on Human Rights and Freedoms. In Vejdeland v. Sweden the EU Court of Human Rights ruled that individuals who slipped leaflets into school kids lockers were inciting hatred against homosexuals.[6] In that case the court distinguished the facts of the Pentecostal pastor’s case, as the situation of a pastor preaching to his own congregation is distinctly different from a person placing leaflets on and into children’s lockers.[7] Furthermore, the leaflets were formulated in such a way as to be unnecessarily offensive to homosexuals as a group.[8]

 

Unlike the EU Court of Human Rights, Australian Courts have limited the meaning of “incites” to mean conduct calculated to encourage persons to hatred, ridicule etc.[9] This is in line with the English common law definition of incitement, and individual states do have a margin of appreciation when regulating freedom of speech.[10] In Catch the Fire Ministries v The Islamic Council of Victoria, two speakers were acquitted of inciting hatred towards Muslims.[11] The speakers had conducted a seminar in a church and had been teaching that Islam promotes violence and teaches that women are to be regarded as property, of no more worth than animals.[12] The court stated that the context of the entire speech ought to have been taken into consideration and that the speech as whole needed to be calculated objectively to incite hatred towards Muslims, not merely their beliefs, for the conviction to be upheld.[13] In the speech the two men gave they were speaking to a mostly Christian audience and were encouraging listeners to love Muslims, rather than to hate them, despite their beliefs.[14] Therefore, the court allowed their appeal.16

 

In conclusion, we have seen that the right to freedom of belief and expression are essential rights protected by Article 19(1) of the ICCPR, and that while the right to belief has no exception, the right to expression may be regulated by law. We have also seen that not all offensive speech is hate speech and that restrictions on free speech must follow the strict criterion set forth in Article 19(3) of the ICCPR. Furthermore, expression which allegedly promotes hatred, ridicule or serious contempt for others, ought to be protected by careful analysis of the context and audience of the expression, rather than a superficial analysis of its offensive content alone.

 

Written by Caleb Corneloup

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[1] Dominika Chawska-Siniarska, Protecting the right to freedom of expression under the European Convention on Human Rights, A handbook for legal practitioners, Council of Europe 2017, 9.

 

[2] Ibid, 13-14; Aoife O’Reilly, (2016) “In Defence of Offence: Freedom of Expression, Offensive Speech, and the

Approach of the European Court of Human Rights,” Trinity College Law Review 19, 234, 236

 

[3] CCPR/C/GC/34, 7.

[4] Monis v The Queen (2011) NSWCCA 231, 248; Melser v Police [1967] NZLR 437, 443-446.

[5] NJA 2005 p. 805

[6] Vejdeland v. Sweden (2011) ECtHR, 3, 11.

[7] Ibid.

[8] Ibid.

[9] Catch the Fire Ministries v The Islamic Council of Victoria (2006) 206 VSCA 284, 289.

[10] Ibid.

[11] Ibid.

[12] Ibid, 214-215.

[13] Ibid, 296, 297.

[14] Ibid, 246. 16 Ibid.