scholarly journals Interference with Freedom of Expression

2022 ◽  
Author(s):  
Gabriela Nemţoi ◽  

Established as a personal right, the right to free speech implies obligations and duties, which may generate possible restrictions. Freedom of expression works correctly in a legal framework when it comes to a legitimate aim in a state law. Article 10, paragraph 2, of the Convention explains the conditions under which the right to freedom of expression is justified by the need to protect certain public interests (such as those relating to national security, the territorial space of the state, public order, the prevention of crimes, the protection of health and social morals, the guarantee of authority and the impartiality of the judiciary) but also to protect certain private interests, such as reputation and the rights of others. persons or the need to prevent the publication of secret information. This paragraph basically authorizes states to take certain measures to protect those interests, which materialize through rules and normative rules of the right to conscience, opinion and freedom of expression States enjoy a margin of appreciation for establishing the need for such reactions in a state governed by the rule of law, but in the end it is also up to the European Court of Human Rights to rule on the compatibility of interference with the provisions of the Convention, assessing on a case-by-case basis if the interference arises as a result of the urgent social issues and whether it is fair.

Author(s):  
Bernadette Rainey

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter first explains the background and rationale for the formation of the European Convention on Human Rights (ECHR), tracing its roots to the Council of Europe that was formed in 1949 and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) established a year later. It then looks at the different kinds of human rights embedded in the ECHR, including the right to life, right to a fair trial, freedom of expression, right to property, and right to free elections. The chapter also provides an overview of the European Court of Human Rights (ECtHR), along with the major changes made to its complaints system and how it interprets the Convention rights. Finally, it considers the ECtHR’s use of proportionality and margin of appreciation doctrines to find the balance between the rights of the individual and the community when deciding upon qualified rights.


2020 ◽  
Vol 3 ◽  
pp. 41-55
Author(s):  
Pavlo Pushkar ◽  
Oleksii Ivanets

This article suggests a review of the case-law of the European Court of Human Rights and the practices of the Committee of Ministers of the Council of Europe as sources of evaluation of the material and procedural requirements as to the right to freedom of expression. These practices, being synchronised and coherent, are aimed at ensuring implementation of the requirements of the Convention. The right to freedom of expression reflects several aspects of realisation of this right – its realisation as an individual and its collective dimension – together with other persons, or even refusal to exercise a right to freedom of religion. Also, most importantly, the article deals with the requirements of the procedural protection of this right, supplemented guarantees of preventive nature and procedural nature aimed at ensuring effective protection of the right domestically. Such measures include domestic administrative or judicial action. The right to freedom of religion is a right, which integrates some aspects of its subsidiary implementation. In particular, in determining existence of legitimate aim and proportionality of interference with the right to freedom of religion. The article also discusses the relevance of “margin of appreciation” and “proportionality” as elements that influence academic discussions and public criticism of some of the approaches taken by the European Court of Human Rights in assessing compliance of measures taken by the states to limit exercise of freedom of religion.


2021 ◽  
Vol 4 (3) ◽  
pp. 170-180

This paper examines the degree of permissible interference with a judge’s freedom of expressing his/her own opinion and convictions. A question is raised about the limits of a judge’s freedom of expression and discretion of the state in establishing his/her communicative behaviour, taking into account the established practice of the European Court of Human Rights (hereinafter ECtHR, the Court). Understanding these limits is important not only for individual judges but also for society as a whole, as restrictions on freedom of expression may affect the state’s perception of the rule of law. Systematic analysis of the key documents that regulate the issue of freedom of expression of a judge in Ukraine allows us to identify several spheres of imperative regulation of a judge’s behaviour in the context of communicative activity: during the administration of justice (in court procedure); in public speeches, particularly in the media; during the implementation of other activities not prohibited for the judge – literary, scientific, educational; during Internet communication; in everyday life. ECtHR case-law in the context of assessing the limits of a judge’s freedom of expressing one’s opinion develops in two directions. In the first, the judge’s freedom is considered in the context of Art. 10 (freedom of thought, conscience, and religion, freedom of expression, and freedom of assembly and association) of the European Convention on Human Rights (hereinafter ECHR, the Convention). In the second, the right to freedom of expression is limited to the right to a fair trial of others (in the context of impartiality and independence of a court within the meaning of Art. 6 of the ECHR). In general, the matter of judicial evaluation was the statements of judges concerning cases that were in their proceedings; those criticising judicial reform measures and other administrative actions; those which criticised their colleagues. The results of the analysis allow us to conclude that, despite the different preconditions, different circumstances, and varying implementation reflections, the freedom of a judge to express his/ her opinion is limited by his/her special status as a state servant (in a broad sense). Where the boundary is in a particular case should be determined by considering the specific circumstances. However, national law enforcement authorities must develop their own criteria for assessing the balance of public and private interests in a judge’s communicative behaviour


Author(s):  
Guido Raimondi

This article comments on four important judgments given by the European Court of Human Rights in 2016. Al-Dulimi v. Switzerland addresses the issue of how, in the context of sanctions regimes created by the UN Security Council, European states should reconcile their obligations under the UN Charter with their obligations under the European Convention on Human Rights to respect the fundamentals of European public order. Baka v. Hungary concerns the separation of powers and judicial independence, in particular the need for procedural safeguards to protect judges against unjustified removal from office and to protect their legitimate exercise of freedom of expression. Magyar Helsinki Bizottság v. Hungary is a judgment on the interpretation of the Convention, featuring a review of the “living instrument” approach. Avotiņš v. Latvia addresses the principle of mutual trust within the EU legal order and the right to a fair trial under Article 6 of the Convention.


2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.


Author(s):  
A.P. Ushakova ◽  

From the standpoint of the dominant interest criterion the article examines the justification of the legislator`s decision to apply public law methods in order to regulate relations concerning the use of land for infrastructural facilities placing. The author gives the arguments in favor of understanding the public interest as the interest of the whole society as a system, rather than the interest of an indefinite range of persons or the majority of the population. The author concludes that there is the simultaneous presence in the specified legal relations and private interests of the participants of legal relations, and public interests of society as a system. Both types of interests in these legal relations are important, but in terms of different aspects of the legal impact mechanism. Public interest is important because its realization is the purpose of legal regulation of this type of legal relations, from this point of view it acts as a dominant interest. The private interest of the holder of a public servitude is important as an incentive to attract the efforts of private individuals to achieve a publicly significant goal. The private interest of a land plot owner is important from the point of view of securing the right of ownership. It is substantiated that the public servitude is not an arbitrary decision of the legislator, but an example of application of the incentive method in the land law, which provides a favorable legal regime for a socially useful activity.


Author(s):  
Sabine Jacques

This chapter examines the relevance of freedom of expression to the parody exception. It first considers the debate on the interaction between intellectual property rights and fundamental rights before discussing the ways in which freedom of expression may address the excessive expansion of exclusive rights as well as the outer limits of the parody exception. The chapter explains how human rights are embodied in the parody exception and how factors established in the European Court of Human Rights jurisprudence may legitimately restrict freedom of expression. It also explores how national legislators and courts in France, Australia, Canada, the United States, and the United Kingdom strike a balance between freedom of expression values and copyright values. It shows that the outer limits of the parody exception in each jurisdiction are determined by the influence of freedom of expression on copyright, the margin of appreciation, and the proportionality test.


Author(s):  
Bernadette Rainey

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on freedom of religion and freedom of expression, which are classified as qualified rights, and examines Article 9 of the European Convention on Human Rights (ECHR), which explains the right to hold or not hold a belief as well as the right to manifest a belief. It also considers how the European Court of Human Rights (ECtHR) decides if there has been manifestation of belief, interpretation of Article 10 with respect to views that shock and disturb and some forms of hate speech, and state restriction of expression. The chapter concludes with a discussion of freedom of religion and expression in the UK.


2018 ◽  
Vol 72 (1) ◽  
pp. 295-304 ◽  
Author(s):  
Andy Buschmann

Abstract Myanmar has been perceived to be in a sociopolitical and economic transition since the semi-civilian government under President Thein Sein took office in 2011. Amongst other things, for a representative democracy to function, citizens have to have the freedom to express their opinions and deliberate them with fellow citizens. This requires the secure granting of fundamental civil liberties, as prescribed in the freedom of expression, association, and assembly. Hence, once in the process of democratization, a formerly authoritarian state has to make significant improvements in the granting and protection of these rights too. To empirically test whether Myanmar has made such improvements since 2011 is the goal of a greater research project I am working on. This research note introduces the project and summarizes first findings. By combining knowledge on legal reforms and protest data from the Myanmar Protest Event Dataset, it is suggested that, in Myanmar, the de jure exercisability and de facto exercise of fundamental civil liberties have significantly improved from 2011 to 2015. Informal methods of suppressing the right to protest, such as arbitrary violence, have increasingly descended while methods that are formally in accordance with the rule of law but still lack compliance with international human rights standards have ascended.


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