Conclusion: The Principle of Freedom of Expression in Practice

2021 ◽  
pp. 296-318
Author(s):  
Matthew H. Kramer
Keyword(s):  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Moral Principle ◽  
Moral Obligations ◽  
Legal Remedies

This chapter concludes Freedom of Expression as Self-Restraint by probing briefly a few of the knotty procedural issues that attend the efforts by any system of governance to implement the moral principle of freedom of expression (or, rather, to implement some constitutional or statutory guarantee that corresponds more or less closely to that moral principle). Among the issues at which the chapter glances are the scalar character of compliance by systems of governance with the principle of freedom of expression, the legal remedies that are apposite for giving effect to the moral obligations imposed by that principle, the location and stringency of the burden of proof in litigation where communicative liberties are at stake, and the location of the general legal powers to invalidate statutes and other laws. The chapter explains why these issues have been consigned to a fairly brief concluding portion of the book, instead of being treated in depth.

scholarly journals DEFINITION OF THE CONCEPT OF «DEFAMATION» IN THE COUNTRIES OF CONTITENTAL EUROPE

2021 ◽  
pp. 104-111
Author(s):  
N. I. Skoropysova
Keyword(s):  
Western Europe ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Moral Rights ◽  
Protection Mechanism ◽  
Inaccurate Information ◽  
European Court ◽  
Protected Object ◽  
Definition Of ◽  
The Right

The article discusses the key issues of the interpretation of the concept of “defamation” in the countries of Western Europe. In a modern social and legal state, considerable attention is paid to the protection of individual rights and freedoms as the foundations of democracy. One of the basic personal rights is the right to personal dignity, protection of honor and reputation. Analysis of the structures of the current legislation, the positions of the Supreme Court, acts of the European Court, as well as classical and newest scientific approaches, defamation is an offense expressed in the dissemination of inaccurate information that violates the right of a legal entity to a business reputation. Honor, dignity, business reputation are constituent elements of such categories as personal moral rights and intangible benefits, in order to ensure the realization and functioning of the rights of which, a well-thought-out, well-coordinated and effective protection mechanism must be produced. Attention is focused on the fact that for the proper operation of such a mechanism, it is necessary to determine, first of all, the protected object, what are its features and boundaries that need to be regulated by law. Indeed, in the case of securing an incomplete list of protected in the legislation, fixing in the norms not all signs of the protected or the presence of gaps in the regulation of this legal relationship, the potential for abuse of the right or misinterpretation of its norms arises. National laws define in different ways whether the burden of proof lies with the plaintiff or the defendant. It is concluded that defamation is one of the unlawful acts that infringe upon honor, dignity and reputation and requires further study in the practice of the European Court. In dealing with defamation cases, courts always need to find a compromise and strike a balance between freedom of expression, freedom of thought and speech, and protection of dignity, honor and reputation.

Remedies and Sanctions

2016 ◽  
Author(s):  
Matthew Nicklin QC ◽  
Chloe Strong
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Personal Information ◽  
European Convention ◽  
Criminal Sanctions ◽  
Legal Remedies ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Media ◽  
The Right

This chapter considers the legal remedies that may be available to those who complain that an invasion of their privacy has occurred or is threatened by the actions of the media, as well as touching briefly on the criminal sanctions that may be applicable. Regulatory remedies under the Data Protection Act are considered in Chapter 7 and the remedies available from the media regulators in Chapter 14. Whether a remedy is sought before or after publication, and whether the complaint relates to the content of an actual or proposed publication or the method by which personal information has been obtained, it is likely that any relief granted will affect the exercise of the right to freedom of expression enshrined in Article 10 of the European Convention on Human Rights (ECHR). In such circumstances s 12 of the Human Rights Act 1998 (HRA) applies. The interpretation given to this important statutory provision by the courts is considered in Section C, but this chapter begins by looking at Parliament’s intention in enacting s 12. This is not necessarily to suggest that courts should have regard to such material as an aid to construction under the rule in Pepper v Hart but rather to explain the legislative background to this highly relevant provision.

Hatred, Dignity, and Freedom of Expression

2021 ◽  
pp. 244-295
Author(s):  
Matthew H. Kramer
Keyword(s):  
First Amendment ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Sense Of Self ◽  
Moral Principle ◽  
The Political ◽  
American Constitution ◽  
Liberal Democracies ◽  
Main Target ◽  
The Usa

In his 2012 book The Harm in Hate Speech, Jeremy Waldron has argued sustainedly in favor of hate-speech laws like those that have been enacted in most of the European liberal democracies and in Canada and the Antipodes. His main target is the American position on hate speech, for in the USA any laws along the lines of those just mentioned would be violative of the First Amendment to the American Constitution. This chapter maintains that the gist of the American position is not only a corollary of the First Amendment but also a corollary of the moral principle of freedom of expression. Even more strongly, the chapter contends that the hate-speech statutes championed by Waldron are profoundly demeaning for any country wherein they are adopted. The adoption of such statutes both ensures and presupposes that a system of governance has failed to meet its responsibility to bring about the political and social and economic conditions under which every member of a society can be warranted in harboring an ample sense of self-respect.

Freedom of Communication in the US and Europe

ICL Journal ◽  
2013 ◽  
Vol 7 (2) ◽  
Author(s):  
Pedro Tenorio
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Burden Of Proof ◽  
Freedom Of Speech ◽  
The United States ◽  
Constitutional Court ◽  
The Press ◽  
The Supreme Court ◽  
The Us

AbstractThis paper compares the freedom of communication in the jurisprudence of the Supreme Court of the United States and the European Court of Human Rights, departing from the judgments of the Supreme Court of the United States. It is noted that there are differences, as specified herein. Regulatory texts invite to speak of two distinct models, though this may be a far-fetched statement. This paper makes the following concluding remarks: 1) There are many concepts of freedom of expression that are compatible with democracy; the one derived from the Sullivan Judgment in the US (and in Europe from the Lingens Judgment) is not the only one, although it is currently considered the most consist­ent with democracy. This point is not discussed here. 2) Major changes sometimes occur through seemingly small details. In this sense, the shift of the burden of proof in defama­tion cases (Sullivan) has created an earthquake in the legal regime governing the press. The Sullivan doctrine can be summarized as follows: first, errors are inevitable, as freedom of speech requires ‘breathing room’; second, the malice of those accused of defamation must be proven; third, it is necessary to prove the lack of veracity of the slanderer. This doctrine allows the press to play its role as the watchdog of freedom. 3) In Spain, the press also appears to play this role, thus requiring us to ask whether there is, or ever was, a Sullivan Judgment in Spanish jurisprudence. We tend to attribute the privileged position of the press in Spain to the fact that the Constitutional Court has given preferential consid­eration to freedom of speech when it is in conflict with honor, intimacy and self-image privacy. This preference is justified by its connection to democracy. Since the judgment of the Spanish Constitutional Court (STC hereafter) 6/1981 of 16 March, the Spanish Consti­tutional Court has stressed the importance of freedom of information for democracy, and since the STC 159/1986 of 16 December, the Constitutional Court has suggested the pref­erential position of freedom of expression. However, the incorporation of the Sullivan doc­trine into the Spanish system occurred through STC 6/1988 of 21 January, almost ten years after the passage of the Constitution into law.

Legal Remedies for Human Rights Violations in the Armed Conflict in Chechnya: The Approach of the European Court of Human Rights in Context

2010 ◽  
Vol 1 (2) ◽  
pp. 275-303 ◽  
Author(s):  
Kirill Koroteev
Keyword(s):  
Human Rights ◽  
Armed Conflict ◽  
Burden Of Proof ◽  
Armed Conflicts ◽  
Reasonable Doubt ◽  
Human Rights Violations ◽  
Legal Remedies ◽  
European Court ◽  
The Russian Federation ◽  
Assessment Of Evidence

AbstractThe article discusses the efficacy of the remedies offered to successful applicants by the European Court of Human Rights in the cases coming from the armed conflict in the Chechen Republic of the Russian Federation. It submits, firstly, that proper establishment of facts constitutes a remedy in itself for victims of human rights violations in an armed conflict. It then analyses the establishment of facts by the Court in the Chechen cases and argues that the assessment of evidence under the Court's burden of proof 'beyond reasonable doubt' was applied unevenly in different cases. The paper suggests that the Court obtains evidence proprio motu, which it has never done in the Chechen cases. Secondly, this paper evaluates the European Court's practice to limit the just satisfaction by monetary awards and to consistently deny the applicants' requests for non-monetary awards. It then discusses the developments in the international law on reparations for human rights violations under the ECHR and in the Inter-American and UN systems, and argues for a need to enhance the European Court's awards of just satisfaction. Finally, the paper assesses the supervision of the execution of judgments in the Chechen cases, finds it ineffective, and suggests that more actions are required from the Court in order to deal effectively with alleged human rights violations arising from armed conflicts.

The joy of obligation: Human cultural worldviews can enhance the rewards of meeting obligations

2020 ◽  
Vol 43 ◽  
Author(s):  
Emma E. Buchtel
Keyword(s):  
Prosocial Behavior ◽  
Moral Obligations ◽  
Heritage Culture ◽  
Confucian Heritage Culture ◽  
Cultural Worldviews

Abstract Is it particularly human to feel coerced into fulfilling moral obligations, or is it particularly human to enjoy them? I argue for the importance of taking into account how culture promotes prosocial behavior, discussing how Confucian heritage culture enhances the satisfaction of meeting one's obligations.

Differentiating between different forms of moral obligations

2020 ◽  
Vol 43 ◽  
Author(s):  
Rajen A. Anderson ◽  
Benjamin C. Ruisch ◽  
David A. Pizarro
Keyword(s):  
Moral Character ◽  
Moral Obligations ◽  
Different Types

Abstract We argue that Tomasello's account overlooks important psychological distinctions between how humans judge different types of moral obligations, such as prescriptive obligations (i.e., what one should do) and proscriptive obligations (i.e., what one should not do). Specifically, evaluating these different types of obligations rests on different psychological inputs and has distinct downstream consequences for judgments of moral character.

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