THE AUTHOR
ana Kuchukhidze
Freedom of Speech and its Limits
The existence of pluralistic opinion in our society, represents a necessary prerequiste for the development of the state and society. BY ANA KUCHUKHIDZE
I disapprove of what you say, but I will defend to the death your
right to say it. ~ Voltaire
Greetings!
Having learned about the contest and getting acquainted with the
subject chosen, I made my mind to take part in it. I don’t know
whether my attempt would be a success and whether I will be able to
convey my message perfectly, but I am happy to take advantage of the
opportunity afforded by the Council of Europe and to exercise my
right, the right of freedom of speech and to provide the reader with
my vision on European law.
European law is a reflection of the European ideology. It perfectly
demonstrates what we, the Europeans, are, what we appreciate and
what we are struggling against. Today, every person wishing to get
acquainted with the basic principles of European law, can afford to,
since the Council of Europe, on the basis of the experiences gained
throughout the years, has developed a single legislative act and
called it “European Convention on Human Rights and Fundamental
Freedoms”.
Article 10 of the aforesaid Convention, deals with the main issue of
my theme: Freedom of speech.
Article 10 (1) of the European Convention on Human Rights states:
“1. 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. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema
enterprises. “
The term “expression” as prescribed by the Convention, encompasses
both the content of the expression as well as the form. Therefore,
Article 10 of the Convention embraces both apolitical and political,
commercial or any other statements, regardless of the specific form
of its expression such as for instance, the expression of views
through works of literature, paintings, caricatures and other
imaginative means, as well as the spreading of information through
the mass media, the internet, broadcasting etc.
Article 10 (1) implies not only freedom of expressing one's own
opinion, but freedom of spreading the information and freedom of
obtaining information.
Freedom of speech represents a fundamental basic human right, which
has long been the subject of debate by society.
What is the reason for the fact that this theme has not lost its
urgency so far?
I think a lot over the form through which I will be able to tell the
reader the history of freedom of speech and finally, for some
reason, I decided to write a preface of a short fairy tale:
Once upon a time, when peace and happiness dominated the world,
different rights peacefully co-existed with each other. They
respected and appreciated each other. Out of these rights, freedom
of speech was one of the best. Everyone cherished it. But, one day,
evil spirits came and decided to capture it, whereupon, a merciless
struggle for the protection of freedom of speech began. With a view
to rescuing freedom of speech the whole benevolent world united in
this struggle, though evil spirits exerted all their power to attain
their sinister goal.
I think the reader will take an interest in the development of
events and the end of this fairy tale.
As a rule, in all fairy tales, benevolent spirits always prevail
over evil spirits, but, it should be underlined, that the end of
this fairy tale is different in each country. In some countries,
this fairy tale has a happy ending while in some countries they have
been struggling to rescue freedom of speech. But, I think, I have
missed something important.
In all fairy tales there are heroes, princesses, princes, fairies or
simply little boys, who bravely fight against evil spirits and
defeat them – owing to them that truth and kindness will finally
emerge as the victors.
Many are of the opinion that this happens only in fairy tales;
however, the ECHR was established in 1959, within the European
space, on the basis of the European Convention on Human Rights.
Since its inception, the ECHR has worked in order to regulate, from
the legal aspect, freedom of speech related-issues in the European
states; it revealed the infringements on freedom of speech and
established a common European standard for the protection of this
right.
The facts demonstrate that the result was impressive. Every year,
the international non-governmental organization, Reporters without
Borders, analyses the level of protection of freedom of speech in
the world and, on the basis of the obtained results, publishes the
ratings of the states.
Throughout the years, out of the top ten, at least nine were
taken by the states, who are parties to the European Convention on
Human Rights.
The results achieved as a result of the European law, certainly, are
not confined to the above-mentioned rating. So, it would be
expedient after this little fairy-tale preface, to revert to the
reality and to consider the role and scope of freedom of speech in a
democratic state, and the significance of the European Convention on
Human Rights and the ECHR in the process of safeguarding this right.
Among the human rights, the right of freedom of speech occupies a
unique place.
In the Declaration of the Committee of Ministers “on measures to
promote the respect of Article 10 of the European Convention on
Human Rights” it is stated:
“Freedom of expression and information, including freedom of the
media, is indispensable for genuine democracy and the democratic
processes.
When those freedoms are not upheld, accountability is likely to be
undermined and the rule of law can also be compromised. All Council
of Europe member states have undertaken to secure to everyone within
their jurisdiction the fundamental right to freedom of expression
and information, in accordance with Article 10 of the European
Convention on Human Rights.”
The existence of pluralistic opinion represents a necessary
prerequisite for the development of the state and society. Freedom
of speech is one of the main achievements of democracy and the basis
that is necessary for its development. One should attempt at this
point to define the essence of democracy.
The very nature of democracy, is that it cannot exist only in
several spheres of social life. In order for the state to be
considered as democratic, it is necessary for democratic principles
to actually work in all aspects of social life. In order for a state
to be considered democratic, it should strive to strengthen the
following strategic directions:
1. Political pluralism;
2. Organization and implementation of democratic elections;
3. Public policy and information, etc.
One of the main levers to achieving these goals is freedom of
speech.
It is freedom of speech that provides society and its members with
the possibility to make their statements clear to the authorities,
to show them the existing problems and to inform them about their
own visions on how to settle these problems. By the same token,
freedom of speech is essential for political organizations as well.
It is freedom of speech, along with freedom of the media that
provides political leaders with the opportunity to get people
acquainted with their views on the ongoing developments in the
country, to inform them of their visions and to keep society
informed of the results of the activities carried out by them.
Freedom of speech is directly connected with important political
rights such as the right to vote. Therefore, if the population is
not informed on the current situation in the country, if there is
lack of political debate, if divergent opinions are prohibited, it
is obvious that the population will not have an opportunity to make
its choice. Speaking of democracy is out of the question in a
country, where free elections are not held.
Despite the great significance of freedom of speech, the violation
of this fundamental right still exists in certain countries.
One can ask, why does it occur?
Words by Pascal will provide a clear answer to this question: “In
every day life, people obey the law of their country, in all other
cases they obey the opinion of most people! Why? Because, only laws
and public opinion have the power.”
Public opinion plays a crucial role in the life of the state.
Attempts to stifle freedom of speech for benefiting the interests of
the authorities are frequent. This in turn exerts a considerably
negative influence on the country and further aggravates the
situation on the international arena.
Unlawful restrictions on freedom of speech can lead a country into political crisis. The political crisis is then followed by an unstable situation in the country; therefore, public security is threatened. Finally, all this may culminate in the violent confrontations between the authorities and society.
Sadly, examples of such confrontations in our modern world are
numerous. From this aspect, Georgia is not an exception.
One of the main reasons, that caused the Rose Revolution of 2003 was
freedom of speech.
Georgia of that period, encountered serious social and economic
problems. These were the most significant causes of dissatisfaction
among people, but, the beginning of the end for the authorities in
Georgia, began with the murder of the famous Georgian journalist
Sanaya’, to be more precise, according to journalists and society
with the “murder of freedom of speech”.
The political unrest achieved its peak, when one of the most popular
TV companies at that time, “Rustavi-2” was attacked. These
developments were followed by irreversible events, which finally
culminated in the Rose Revolution.
International organizations devote much attention to freedom of
speech; as a result, there are numerous documents interpreting the
essence of freedom of speech and defining minimal standards for its
protection. Out of these documents, the most important is the
European Convention on Human Rights as well as resolutions,
declarations and other documents formulated by the Council of
Europe.
It is universally recognized that the “European Convention for the
Protection of Human Rights and Fundamental Freedoms” represents one
of the most effective international documents for the protection of
human rights and freedoms. Its particular effectiveness is
conditioned by several factors:
• It was the European Convention that for the first time brought
together all approaches, that were established in the sphere of
human rights, into one legislative act and imposed obligations on
the parties to the Convention, within their relevant jurisdiction,
to provide everyone with the rights and freedoms prescribed by the
Convention.
• The Convention sets up the effective mechanism for insuring rights
and freedoms – the permanent body – ECHR, the decisions of which are
binding on all states that are parties to the Convention.
• ECHR, established on the basis of the Convention, permanently
gives legal explanations of the most significant issues (including
the right of freedom of expression) that are protected by the
Convention and its Protocols. These explanations and
interpretations, on their part, acquire the programmed character and
the parties to the Convention try to integrate the approaches
developed by the ECHR in their national laws.
The first law regulating freedom of expression in Georgia “On Press
and Other Mass Media”, was passed on the 10 August 1991, at the dawn
of the post-communist epoch. The law was far from modern European
standards. It included numerous provisions, which were archaic and
obsolete.
In 1995, upon the adoption of the Constitution and ratification of
international treaties, Georgia encountered the need for
establishing a framework upon which modern western values and
interpretations relating to freedom of speech are based. It took a
long period of time for Georgia to achieve this goal. The new law
“On Freedom of Speech and Expression”, which for the time being
legally regulates freedom of speech, freedom of expression, freedom
of media, freedom of information and other rights related to them,
was passed only on the 24 June 2004.
The roles played by the Council of Europe, and the European
Convention on Human Rights were instrumental in bringing this law to
life.
As a result, the law of Georgia On Freedom of Speech and
Expression of 2004, was completely harmonized with European Law.
Of course, it does not mean yet that there are no problems relating
to the protection of freedom of speech and expression in Georgia. It
is obvious that today's Georgia has a perfected legislation, but I
would like to cite the words of Montesquieu:
“When I visit this or that country, I am not interested whether it has perfect laws or not, I am interested in how these laws are implemented, since every country has good laws”.
These words clearly express the problem, which exists in Georgia and the fact that violations of freedom of speech are still frequent.
Therefore, it is necessary for the Council of Europe and other international organizations not to relax their attention and efforts, and to keep monitoring the ongoing situation in Georgia relating to freedom of speech.
This is essential in order for Georgia to really become the
European country, which protects the right of freedom of speech.
International law is essential and necessary for the settlement of
international disputes. Among the international legal mechanisms for
the settlement of disputes, the ECHR occupies one of the leading
roles.
Having discussed the essence and the positive aspects of freedom of
speech, as well as the importance of the European law and the role
of the ECHR, it is necessary to underline that freedom of speech is
not an absolute right and that European law provides for cases, in
which this right might be restricted. In this connection, the
question that may arise is: What limitation on freedom of speech is
necessary?
In order to answer this question, I would like to cite the words of
Sulkhan-Saba Orbeliani (1658-1725), who is considered to be the
father of Georgia. By the end of the XVII century, to be more
precise, in the years of 1686-1695, he wrote a book of instructive
fables, which does not lose its urgency even today. Amid the fables,
there is one called Wounded by a Tongue, which I like to take the
liberty to mention it to the reader.
“Once upon a time, a man and a bear became friends. The man invited
the Bear to dinner and received him warmly. The bear, leaving, said
goodbye to the man, who embraced him and demanded from his wife to
do the same. When the woman approached the bear, she smelled an
unpleasant smell and said arrogantly: “I cannot stand smelly guests!
Some time later, the man visited the bear. The man, who wanted to
cut fire wood on the way to home, took his axe. The bear received
the man warmly and entertained him. Then the bear began to ask the
man persistently: “Stab me by your axe, wound me”. The man refused,
but the bear persisted.
Finally, the man fulfilled the bear’s wish and cut the bear’s head
with his axe.
A month later they met each other again. The bear said to the Man:
“You see that the wound on my head inflicted by you with your axe
has been healed, but my heart wounded by your wife’s tongue will
never heal.
Sulkhan-Saba Orbeliani (1658-1725)
- So, the tongue can kill the man. The man killed by the tongue
cannot be revived by the tongue and neither a wound inflicted by the
tongue can be healed”, - with these words the author ends his fable.
There is no doubt that freedom of speech is the greatest achievement
of modern times, however misuse of this right, may lead under
certain circumstances to undesirable consequences.
Recognizing the consequences that may result from the misuse of this
right, Article 10(2) of the European Convention on Human Rights
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.”
While considering Article 10, first of all, a parallel should be
drawn with Articles 8, 9 and 11 of the Convention. The aforesaid
Articles by their structure are formulated as follows:
The first clause establishes the essence of rights ensured by the
Convention and the second one determines the basis of legitimate
restrictions of this right and defines the following three terms:
Restriction shall a) be provided for by the Law; b) be necessary in
a democratic society and c) serve a legal purpose.
In order for the European Court to determine whether a restriction
is lawful in a particular case, it is necessary to satisfy all three
requirements at one and the same time.
Disregard of one of these requirements is indicative of an unlawful
encroachment on freedom of speech.
The ECHR in its resolutions has more than once indicated that states
are obliged to adopt a strict interpretation of the phrase
“necessary in a democratic state” and to apply the restraining
regulation only in cases of emergency.
In compliance with the European Convention, freedom of speech may be
restricted in the interests of national security, territorial
integrity or public safety, as well as for preventing the spread of
secret information.
For me, as a citizen of a state in which hostilities took place two
years ago, of particular interest was an approach of the ECHR over
the issue of how the mass media should function in such a situation.
At this point, I would like to cite as an example the case of
Erdogdu and Ince v. Turkey, in which the Court stated:
”The Court stresses that the duties and responsibilities which
accompany the exercise of the right to freedom of expression by
media professionals assumes special significance in situations of
conflict and tension.
Particular caution is called for when consideration is being given
to the publication of the views of representatives of organisations
which resort to violence against the state lest the media becomes a
vehicle for the dissemination of hate speech and the promotion of
violence.”
The Convention also provides for restrictions on freedom of speech
for the protection against slanderous and abusive language as well
as speech that encroaches on the privacy of the individual.
The ECHR does not deny the right of protection to politicians or
other state figures; however, due to the position they occupy in
society, politicians enjoy less protection against criticism than
private individuals.
In conclusion, I cannot but touch upon the issue of hate speech.
This issue deserves particular attention, since, if regarding the
above considered issues the world has established more or less
similar approaches, it is hate speech over which the European and
the American legal approaches radically differ from each other.
Expressions of racist attitudes for example, are not prohibited in
the United States. European law on the other hand, has adopted a
completely different approach. Extreme forms of speech as well as
hate speech are not protected by Article 10.
In my opinion, this approach is completely justified and acceptable.
It is not my intention to criticize the American system here;
however one cannot deny the fact that unlimited freedom of speech
may in certain instances result in great harm to society.
While writing this essay, I recalled one thing. In my childhood, I
often watched one Russian animated serial and each episode ended
with the following words: “Friends, let us live in harmony”. So, I
would like 'to complete my essay with a naive, but heartfelt wish:
Europeans, let us live in harmony!
About the Author
Ana Kuchukhidze is a PhD student from Tiblisi, Georgia.
