8. The Role of the Inter- American Human Rights System in the Emergence and Development of Global Norms on Freedom of Expression

2021 ◽  
pp. 185-206
Author(s):  
Catalina Botero-Marino
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Global Norms

scholarly journals What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

2004 ◽  
Vol 17 (1) ◽  
pp. 61-81 ◽  
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Freedom Of Expression ◽  
Social Democracy ◽  
Recent Attempt ◽  
Private Law ◽  
Human Rights Norms ◽  
The Right ◽  
Higher Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

scholarly journals OF SEMI-COLONS AND THE INTERPRETATION OF THE HATE SPEECH DEFINITION IN THE EQUALITY ACT South African Human Rights Commission v Qwelane (Freedom of Expression Institute as Amici curiae) and a related matter [2017] 4 All SA 234 (GJ)

Obiter ◽  
2018 ◽  
Vol 39 (2) ◽  
Author(s):  
Joanna Botha
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Eastern Cape ◽  
Threshold Test ◽  
Related Matter ◽  
The Republic

In South African Human Rights Commission v Qwelane (hereinafter “Qwelane”) the constitutionality of the threshold test for the hate speech prohibition in section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter the “Equality Act”) was challenged. Although the court had no difficulty in finding that the publication in question fell squarely within the parameters of hate speech, the judgment is both incoherent and flawed. The court’s conjunctive interpretation of the section 10(1) requirements for hate speech also differs from the disjunctive interpretation given to the same provision in Herselman v Geleba (ECD (unreported) 2011-09-01 Case No 231/09 hereinafter “Herselman”) by the Eastern Cape High Court. The consequence is a “fragmented jurisprudence” which impacts on legal certainty, and which is especially dangerous when the legislation in question is critical to the achievement of the constitutional mandate (Daniels v Campbell NO 2004 (5) SA 331 (CC) par 104 hereinafter “Daniels”).This note demonstrates that the Qwelane court misapplied a number of key principles. These include: the court’s mandate in terms of section 39(2) of the Constitution of the Republic of South Africa, 1996 (hereinafter the “Constitution”); the need to strike an appropriate balance between competing rights in the constitutional framework; the importance of definitional certainty for a hate speech threshold test; the meaning to be ascribed to the terms “hate”, “hurt” and “harm” in the context of hate speech legislation; and the role of international law when interpreting legislation intended to give effect to international obligations.The consequence of these errors for hate speech regulation in South Africa is profound.

scholarly journals The Politics of Hate Speech: A Case Comment on Warman v Lemire

2012 ◽  
Vol 19 (1, 2 & 3) ◽  
pp. 2011
Author(s):  
Ranjan K. Agarwal
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Supreme Court ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Court Ruling ◽  
Supreme Court Ruling ◽  
Teleological Reasoning ◽  
Academic Debate

In September 2009, the Canadian Human Rights Tribunal waded into a highly public and acrimonious debate about the role of human rights tribunals and commissions, especially in policing hate speech. In Warman v Lemire,1 the Tribunal held that section 13(1) of the Canadian Human Rights Act2 (CHRA), which prohibits the communication of hate messages, infringed the constitutional guarantee of freedom of expression, section 2(b) of the Charter of Rights and Freedoms.3 The decision added to a firestorm of media, political and academic debate about whether anti-discrimination statutes should prohibit hate speech. The Warman decision is complicated by a twenty-year-old Supreme Court ruling, in a 4–3 decision, that a predecessor provision in the CHRA is constitutional. In this article, I argue that the Tribunal’s decision is logically unsound and likely the result of ends-based or teleological reasoning. In my view, ends-based reasoning does not assist in Charter analysis as it produces decisions that call into question the legitimacy of the courts. This article first outlines the facts in Warman and the Tribunal’s holding on the constitutional issues. It goes on to survey the legal and constitutional background to the Warman decision and discuss the Taylor precedent. It then describes the Tribunal’s reasoning on constitutional issues, including the Taylor decision and amendments to the CHRA after Taylor. Finally, it criticizes the Tribunal’s ends-based reasoning and argues that this type of reasoning is illegitimate in constitutional decision-making.

Freedom of Expression, Counter-Terrorism and the Internet in Light of the UK Terrorist Act 2006 and the Jurisprudence of the European Court of Human Rights

2009 ◽  
Vol 27 (3) ◽  
pp. 331-360 ◽  
Author(s):  
Daragh Murray
Keyword(s):  
Human Rights ◽  
War On Terror ◽  
Freedom Of Expression ◽  
The Internet ◽  
Primary Interest ◽  
Counter Terrorism ◽  
European Court ◽  
The Uk ◽  
The Right

As a result of the ‘War on Terror’ domestic governments and the international community have paid increasing attention to counter-terrorism legislation. Given the meteoric rise in prominence of the Internet, and the ever-expanding ‘terrorist’ use of this entity, it is unsurprising that the Internet has now become the focus of legislative attention. However, what does this mean for one of the most fundamental of human rights, the right to freedom of expression? This article will analyse the concepts of incitement, glorification and dissemination as they relate to the Internet, and evaluate their place within the broader framework of the right to freedom of expression. Consequently, ‘context’, the quantifiable circulation of content, and other relevant issues are evaluated through the prism of the Internet. Similarly, the role of the ‘blogger’ is discussed as it relates to the dissemination of information, and the overarching concept of participatory democracy. For illustrative purposes, the United Kingdom's Terrorist Act 2006, and the jurisprudence of the European Court of Human Rights will be of primary interest.

scholarly journals Criminalising Defamation of Religion and Belief

2014 ◽  
Vol 22 (4) ◽  
pp. 351-375
Author(s):  
Marloes van Noorloos
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Criminal Law ◽  
Freedom Of Expression ◽  
European Convention ◽  
Political Rights ◽  
Civil And Political Rights ◽  
Theoretical Considerations ◽  
Defamation Law

This article deals with the role of criminal law in dealing with defamatory expressions about religion or belief. Defamation of religion and belief is a form of indirect defamation ‘via identification’ which, as the discussion about the Dutch group defamation law shows, stretches up the notion of ‘group defamation’ — a crime which requires that (groups of) persons are insulted because they belong to a religious group. This contribution investigates whether European states can legitimately criminalise (certain forms of) defamation of religion and belief, in light of the European Convention on Human Rights, the United Nations framework (particularly the International Covenant on Civil and Political Rights) and legal theoretical considerations. The article shows how problematic it is for the criminal law — in light of the rights to freedom of expression and freedom of religion, as well as the ultima ratio principle — to combat such speech.

scholarly journals INTERNATIONAL ORGANIZATIONS CONTRIBUTING TO ELECTIONS OBSERVATION AS AN INSTRUMENT OF SECURING HUMAN RIGHTS

2019 ◽  
pp. 71-81
Author(s):  
Hanna Taranenko
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Organizations ◽  
Freedom Of Expression ◽  
Political Will ◽  
Electoral Support ◽  
The United Nations ◽  
Globalized World

The purpose of this research is to investigate the role of international organizations in elections observation as an instrument of ensuring human rights. The objectives are to analyze the notions of democracy and human rights, democratization trends worldwide, current threats to human rights related to elections procedures and the role of international organizations as entities safeguarding human rights in the globalized world. In order to investigate this problem the researcher utilized such scientific methods as deduction and induction, historical and comparative method and the case study one. Historical and comparative methods were used to trace the evolution of international organizations’’ activities with regard to elections observation and compare various organizations’ pertinent processes and procedures. Case study method was used to collect and analyze qualitative data about international organizations’ activity related to elections observation and to define their role in ensuring human rights, in particular, freedom of expression. The notions of democracy and human rights, democratization trends worldwide, current threats to human rights related to elections procedures and the role of international organizations as entities safeguarding human rights in the globalized world were analyzed. As a result, it can be stated that in the increasingly globalized world there are various democratization trends. There are different visions and models of democracy, yet no single one can be considered optimal. It can be noted that international organizations play a significant role in elections observation as an instrument of ensuring human rights. The dynamic rhythm of global development helps to promote plurality of ideas, political ideologies and ethical values. It can be concluded that in this increasingly interconnected world democracy has the function of a mediator promoting understanding among countries, first of all, through the United Nations. Democracy as a type of political regime, i. e. type of relationship between the country leadership and the people cannot function effectively without active social groups and civil society organizations. The political context has to promote freedom of speech, independent media, rule of law, effective judiciary system and overall respect for human rights. Freedom of expression and political choices are among fundamental human rights guaranteed by democratic national and international laws. International organizations are among the most noteworthy entities on the world arena safeguarding human rights and free expression of people’s political will. International organizations are working actively in order to tackle current threats to human rights, in particular, freedom of expression and freedom of political will. To this end, the international and national organizations provide comprehensive electoral support. The United Nations, the European Union, the Organization for Security and Co-operation in Europe and the Council of Europe are actively engaged in providing electoral support and assist in holding objective and just elections worldwide, especially in transitioning countries. They play a key role in providing electoral support in accordance with the international organizations’ mission, bolstering democracy and safeguarding human rights. The role of international organizations in the globalized world as human rights protector continues to be vital and indispensable.

scholarly journals INTERNATIONAL ORGANIZATIONS CONTRIBUTING TO ELECTIONS OBSERVATION AS AN INSTRUMENT OF SECURING HUMAN RIGHTS

2019 ◽  
pp. 71-81
Author(s):  
Hanna Taranenko
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Organizations ◽  
Freedom Of Expression ◽  
Political Will ◽  
Electoral Support ◽  
The United Nations ◽  
Globalized World

The purpose of this research is to investigate the role of international organizations in elections observation as an instrument of ensuring human rights. The objectives are to analyze the notions of democracy and human rights, democratization trends worldwide, current threats to human rights related to elections procedures and the role of international organizations as entities safeguarding human rights in the globalized world. In order to investigate this problem the researcher utilized such scientific methods as deduction and induction, historical and comparative method and the case study one. Historical and comparative methods were used to trace the evolution of international organizations’’ activities with regard to elections observation and compare various organizations’ pertinent processes and procedures. Case study method was used to collect and analyze qualitative data about international organizations’ activity related to elections observation and to define their role in ensuring human rights, in particular, freedom of expression. The notions of democracy and human rights, democratization trends worldwide, current threats to human rights related to elections procedures and the role of international organizations as entities safeguarding human rights in the globalized world were analyzed. As a result, it can be stated that in the increasingly globalized world there are various democratization trends. There are different visions and models of democracy, yet no single one can be considered optimal. It can be noted that international organizations play a significant role in elections observation as an instrument of ensuring human rights. The dynamic rhythm of global development helps to promote plurality of ideas, political ideologies and ethical values. It can be concluded that in this increasingly interconnected world democracy has the function of a mediator promoting understanding among countries, first of all, through the United Nations. Democracy as a type of political regime, i. e. type of relationship between the country leadership and the people cannot function effectively without active social groups and civil society organizations. The political context has to promote freedom of speech, independent media, rule of law, effective judiciary system and overall respect for human rights. Freedom of expression and political choices are among fundamental human rights guaranteed by democratic national and international laws. International organizations are among the most noteworthy entities on the world arena safeguarding human rights and free expression of people’s political will. International organizations are working actively in order to tackle current threats to human rights, in particular, freedom of expression and freedom of political will. To this end, the international and national organizations provide comprehensive electoral support. The United Nations, the European Union, the Organization for Security and Co-operation in Europe and the Council of Europe are actively engaged in providing electoral support and assist in holding objective and just elections worldwide, especially in transitioning countries. They play a key role in providing electoral support in accordance with the international organizations’ mission, bolstering democracy and safeguarding human rights. The role of international organizations in the globalized world as human rights protector continues to be vital and indispensable.

scholarly journals Squaring the Circle Between Freedom of Expression and Platform Law

2020 ◽  
Vol 20 (1) ◽  
Author(s):  
Michael Karanicolas
Keyword(s):  
Human Rights ◽  
Private Sector ◽  
Freedom Of Expression ◽  
Human Right ◽  
International Human Rights ◽  
The Core ◽  
Legal Limits ◽  
International Human ◽  
Global Pressure

Among the greatest emerging challenges to global efforts to promote and protect human rights is the role of private sector entities in their actualization, since international human rights rules were designed to apply primarily, and in many cases solely, to the actions of governments. This paradigm is particularly evident in the expressive space, where private sector platforms play an enormously influential role in determining the boundaries of acceptable speech online, with none of the traditional guardrails governing how and when speech should be restricted. Many governments now view platform-imposed rules as a neat way of sidestepping legal limits on their own exercise of power, pressuring private sector entities to crack down on content which they would be constitutionally precluded from targeting directly. For their part, the platforms have grown increasingly uncomfortable with the level of responsibility they now wield, and in recent years have sought to modernize and improve their moderation frameworks in line with the growing global pressure they face. At the heart of these discussions are debates around how traditional human rights concepts like freedom of expression might be adapted to the context of “platform law.” This Article presents a preliminary framework for applying foundational freedom of expression standards to the context of private sector platforms, and models how the three-part test, which lies at the core of understandings of freedom of expression as a human right, could be applied to platforms’ moderation functions.

The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

2007 ◽  
Vol 8 (7) ◽  
pp. 711-733 ◽  
Author(s):  
Onder Bakircioglu
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Judicial Discretion ◽  
Public Morality ◽  
International Human Rights ◽  
National Interests ◽  
Margin Of Appreciation ◽  
International Human

“Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

The electoral commission, disinformation and freedom of expression

2021 ◽  
Vol 71 (4) ◽  
pp. 675-681
Author(s):  
Ethan Shattock
Keyword(s):  
Human Rights ◽  
Potential Role ◽  
Freedom Of Expression ◽  
European Convention ◽  
European Court ◽  
Starting Point ◽  
Regulatory Scrutiny ◽  
Run Up ◽  
The Right

This commentary examines how the prospective electoral commission could play a role in combatting disinformation in the run-up to Irish elections. While legislative debates have pointed to the potential role of the commission in protecting elections from anti-democratic actors who disseminate false electoral claims, no clear mandate has detailed how this could manifest. This ambiguity is exacerbated by Ireland’s electoral statutory framework, which has struggled to adapt to the challenging digital realities of contemporary electoral engagement. While the emergence of disinformation and related digital exigencies represents a potential for regulatory scrutiny, this must be considered alongside Article 10 of the European Convention on Human Rights (ECHR) and Article 40.6.1 of the Irish Constitution, both of which protect the right to freedom of expression. In positing how the new commission could counter electoral disinformation, a natural starting point is to probe how such functions are shaped and limited by this fundamental right. Moreover, the reluctance of the Irish judiciary and the European Court of Human Rights (ECtHR) to accept regulatory interference with political expression means that restrictions on the dissemination of information in the run-up to elections must be treated with delicacy when shaping the commission’s potential functions in this critical area.

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