Freedom of Expression: A European View

07 December 1999

 Roger Errera¹

FREEDOM of expression is an essential constitutional right in our societies. It is guaranteed by Article 10 of the ECHR. Nowhere, however, is it an absolute right, as is shown by the present state of international law, for example by Article 10(2) of the Convention, which states: 

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. As is clear, from the texts of Article 10(2) of the ECHR and Article 4(a) of the CERD, among the necessary limitations on the right to freedom of expression are, in Europe and elsewhere (e.g. Canada), group libel and hate speech laws.

The classic limitations on freedom of expression are related to ensuring the rights of the individual (e.g. protection from libel or insuring the right to privacy), defending public morality (through obscenity or pornography laws), securing public order and the vital interests of the State (e.g. by prohibiting incitement to serious crimes and the disclosure of defence secrets). In the 20th century, new political and social factors have reinvigorated concerns pertaining to the reasonable limitation of the right to freedom of expression. These factors include the rise of political anti-Semitism and the expression of opinions and attitudes directed against specific groups and minorities. The contents of such political discourse are clear: to denigrate certain groups and individuals belonging to them; and to make such persons or groups responsible for all kinds of political and social evils and dangers - insecurity, unemployment, corruption, decline, danger to national identity, etc. Remedies suggested flow easily from the hateful accusation: according to those propagating hateful ideologies, members of minority groups should be denied basic rights, should be excluded from society, and should be subjected to discrimination in such areas as housing, education, social services, employment, etc.

We need group libel and hate speech laws not only - and not even primarily - to protect and defend certain groups as persons, although this is an important and legitimate concern. Rather, we need such laws for the well-being of society as a whole. This is a political issue, in the highest sense of the word. The ultimate meaning of such laws is that the maintenance of a minimum of civility in public is a societal good. Civility includes the ban on attacks on an individual or a group of persons on the grounds of what they are (or are not) - on grounds of their identity. Permitting vilification harms society as a whole. We live in a century and in societies in which the use of legal instruments against what is - and is meant to be - aggression, is fully legitimate.

It is sometimes argued that such laws may pose a danger to freedom of expression, and have a "chilling effect". That is, they may impose a form of indirect censorship. Persons who argue as such hold that the best way to fight hate speech and group libel is public and open discussion in what is strangely called the "marketplace of ideas". Such an absolutist view of freedom of expression is alien to the European tradition, to the present state of the law in most, if not all European countries, and to the philosophy of Article 10 of the ECHR.

The necessary group libel and hate speech statutes must be carefully worded, in order to withstand constitutional challenge or litigation before the European Court of Human Rights. And they must be enforced. Both Article10(2) of the ECHR and Article 4(a) of the CERD provide such laws a firm ground in international human rights law.

Endnotes:

1. Roger Errera is a member of the Council of State of France and a professor of law at the Central European University in Budapest.