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Dr Erica Howard discusses the right to freedom of expression

Dr Erica HowardIn the wake of the Paris terror attacks, the School of Law's Dr Erica Howard discusses the right to freedom of expression. 

"I do not agree with what you have to say but I will defend to the death your right to say it."

These are the words which Evelyn Beatrice Hall used to describe Voltaire's beliefs in her biography entitled The Friends of Voltaire. These words have been quoted by many after the attack on the offices of the French satirical magazine Charlie Hebdo and the murder of journalists, cartoonists and others there. Charlie Hebdo magazine is known for its publication of cartoons mocking all the major religions. The attack and subsequent events in Paris have led to expressions of solidarity and marches in support of free speech. Powerful yet very simple symbols were used in these marches: holding a pencil or a sign of 'je suis Charlie'.

The attack was thus seen by many as an assault on freedom of speech, freedom of the press and on democracy itself. It was said that the journalists and cartoonists of Charlie Hebdo paid the ultimate price for standing up for their right to free expression.

The right to freedom of speech or freedom of expression can be found in all major human rights instruments, as in Article 19 of the United Nations Universal Declaration on Human Rights, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). These articles declare that 'everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers'.

"On the other hand, the right to freedom of expression is not an absolute right" - Dr Erica Howard, Middlesex University

The Human Rights Committee has stated that the right to freedom of expression in Article 19 ICCPR 'embraces even expression that may be regarded as deeply offensive' (General Comment No. 34, on Article 19 ICCPR, para. 11). And, according to the European Court of Human Rights, the body tasked with overseeing the ECHR, 'this right to freedom of expression applies 'not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society"' (Handyside v the United Kingdom, No. 5493/72, 7 December 1976, para 49).

The European Court of Human Rights has also stressed the importance of the right to freedom of expression for a democratic society: in the words of the Court, 'freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man' (Handyside, para. 49). This indicates that the Court will not easily accept limitations on the right.

Moreover, the Court has also held that 'those who choose to exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or a minority, cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith' (Otto Preminger Institute v Austria, No. 13470/82, para 47). So there clearly is no fundamental human right not to be offended. 

On the other hand, the right to freedom of expression is not an absolute right. Under all human rights instruments it can be limited in certain circumstances. For example, Article 10(2) ECHR allows 'formalities, conditions, restrictions or penalties when these are prescribed by law, 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'. A good example of such a restriction is a criminal law prohibiting the incitement to hatred or violence on the grounds of, e.g. race or religion. But can the Charlie Hebdo cartoons be said to incite hatred and violence against the religious believers of the religions that are mocked in the cartoons? Even if this was the case, the criminal law should be used to challenge this. It would certainly not justify murdering the offender.

Article 10(2) ECHR also mentions that the exercise of these freedoms carries with it duties and responsibilities and, according to the European Court of Human Rights 'whoever exercises his freedom of expression undertakes "duties and responsibilities" the scope of which depends on his situation and the technical means he uses' (Handyside, para. 49). The Court also refers to these duties and responsibilities in Otto Preminger Institute v Austria (para. 49) and then continues that 'amongst them - in the context of religious opinions and beliefs - may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs'.

But again, even if the Charlie Hebdo cartoons can be said to be 'gratuitously offensive' and not to 'contribute to any form of public debate capable of furthering progress in human affairs' there are legal ways of challenging this. None of this would ever justify what happened in the Charlie Hebdo office on 7 January 2015. The people that were murdered at Charlie Hebdo certainly defended their right to free speech to the death.

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