MEDIA AND LAW

FREE SPEECH INTERNATIONAL

PERSPECTIVE

Submitted To, Submitted By,

Asst. prof. Rajani Bhaskar S Ananthu P Santhosh
Co-operative School of law Roll no. 4 S10 C BCom. LL. B
Thodupuzha Co-operative School of Law
Thodupuzha
 INTRODUCTION

Freedom of speech is a principle that supports the freedom of an individual or

a community to articulate their opinions and ideas without fear of retaliation,
censorship, or legal sanction. The right to freedom of expression has been
recognised as a human right in the Universal Declaration of Human Rights and
international human rights law by the United Nations. Many countries have
constitutional law that protects free speech. Terms like free speech, freedom of
speech, and freedom of expression are used interchangeably in political
discourse. However, in a legal sense, the freedom of expression includes any
activity of seeking, receiving, and imparting information or ideas, regardless of
the medium used. Article 19 of the UDHR states that "everyone shall have the
right to hold opinions without interference" and "everyone shall have the right
to freedom of expression; this right shall include freedom to seek, receive, and
impart information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his choice".
The version of Article 19 in the ICCPR later amends this by stating that the
exercise of these rights carries "special duties and responsibilities" and may
"therefore be subject to certain restrictions" when necessary "or respect of the
rights or reputation of others" or "[f]or the protection of national security or of
public order (order public), or of public health or morals".
 International standards on freedom of expression
Universal Declaration of Human Rights
Article 19
Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.
International Covenant on Civil and Political Rights (ICCPR)
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.

3 It may therefore be subject to certain restrictions, but these shall only be

such as are provided by law and are necessary:

a) For respect of the right or reputations of others;

b) For the protection of national security or of public order, or of public health
or morals.

African Charter on Human and Peoples’ Rights

Article 9
1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his
opinions within the law.
Resolution 169 on Repealing Criminal Defamation Law in Africa by the
African Commission on Human and Peoples’ Rights - 24 November 2010
1. Underlines that criminal defamation laws constitute a serious interference with
freedom of expression and impedes on the role of the media as a watchdog,
preventing journalists and media practitioners to practice their profession
without fear and in good faith;
2. Commending States Parties to the African Charter (States Parties) that do not
have, or have completely repealed insult and criminal defamation laws;
(a) Calls on States Parties to repeal criminal defamation laws or insult laws
which impede freedom of speech, and to adhere to the provisions of freedom of
expression, articulated in the African Charter, the Declaration, and other regional
and international instruments;
(b) Also calls on States Parties to refrain from imposing general restrictions
that are in violation of the right to freedom of expression;
European Convention for the Protection of Human Rights and Fundamental
Freedoms
Article 10
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.
2. 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

American Convention on Human Rights

Article 13
1. Everyone has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the form of art, or
through any other medium of one’s choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be
subject to prior censorship but shall be subject to subsequent imposition of
liability, which shall be expressly established by law to the extent necessary to
ensure:
(a) Respect for the rights or reputations of others;
(b) The protection of national security, public order, or public health or morals.
3. The right of expression may not be restricted by indirect methods or means,
such as the abuse of government or private controls over newsprint, radio
broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication and
circulation of ideas and opinions.
4. Notwithstanding the provisions of paragraph 2 above, public entertainments
may be subject by law to prior censorship for the sole purpose of regulating
access to them for the moral protection of childhood and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or religious
hatred that constitute incitements to lawless violence or to any other similar
action against any person or group of persons on any grounds including those of
race, colour, religion, language, or national origin shall be considered as offenses
punishable by law.
ASEAN Human Rights Declaration
There is no established regional human rights body for Asia. However, the ten
countries of the Association of Southeast Asian Nations (ASEAN) formally
established the ASEAN Intergovernmental Commission on Human Rights
(AICHR) on 23 October 2009, during the 15th ASEAN Summit. The group also
adopted a Human Rights Declaration, which guarantees freedom of expression
as follows: Every person has the right to freedom of opinion and expression,
including freedom to hold opinions without interference and to seek, receive and
impart information, whether orally, in writing or through any other medium of
that person’s choice

Arab Charter on Human Rights, 1994

Article 26: The freedom of thought, conscience and opinion is guaranteed to
everyone.
Article 36: Everyone has the right to participate in the cultural life, enjoy literary
and artistic production, and be given the chance to advance his artistic thought
and creative talent
Amsterdam Recommendations—2003
The Organization for Security and Co-operation in Europe (OSCE) published
the Amsterdam Recommendations on Freedom of the Media and the Internet
(Amsterdam Recommendations) in 2003. The Amsterdam recommendations
reflected a recent application in support of the freedom of expression with regard
to contemporaneously methods of expression, i.e., the internet. The preamble
immediately set the tone in support of the freedom of expression by stating “the
basic constitutional value of freedom of the media must not be questioned.” The
Amsterdam Recommendations went on to propose a number of measures related
to numerous topics, including freedom of expression
International standards

• Universal Declaration of Human Rights (article 19)

• International Covenant on Civil and Political Rights (ICCPR) (article 19)
• International Covenant on Economic, Social and Cultural Rights
(ICESCR)
• International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) (article 5)
• Convention on the Elimination of All Forms of Discrimination against
Women (article 7)
• ILO Convention N° 135, Workers' Representatives Convention
• General Comment 10 [19] (Article 19) of the Human Rights Committee
(CCPR/C/21/Rev.1 of 19 May 1989)
• General Comment 11 [19] (Article 20) of the Human Rights Committee
(CCPR/C/21/Rev.1 of 19 May 1989)
• The public's right to know: Principles on Freedom of Information
Legislation. Annex II Report E/CN.4/2000/63
Regional standards

• American Convention on Human Rights “Pact of San José. Costa

Rica” (OAS)
• Declaration on principles of freedom of expression (OAS)
• African Charter on Human and Peoples' Rights (article 9)
• Declaration of principles on freedom of expression in Africa
• Amsterdam Recommendations. Freedom of the Media and the
Internet. Organization for Security and Co-operation in Europe
(OSCE)
• Bishkek Declaration. Organization for Security and Co-operation in
Europe (OSCE)
 CASE LAWS
Kablis v. Russia
The European Court of Human Rights held that prohibiting Mr. Grigoiy Kablis
from holding a demonstration, and ordering the removal of his online posts about
it, violated his rights to freedom of expression and public assembly, protected by
Articles 10 and 11 of the European Convention on Human Rights, respectively.
In September 2015, following news that Russian law enforcement launched a
criminal investigation into senior officials of the Komi Republic, north-east
Russia, Mr. Kablis sought permission from the municipal authorities to hold a
public gathering for around fifty persons in the main town square. He also
published three blog entries and a social media post about the gathering, the
criminal investigation, and other political topics. The authorities refused his
request, blocked his blog, and forced the social media company to delete his
account. Mr. Kablis unsuccessfully complained against the refusal and the
blocking in Russian courts. The European Court of Human Rights held that the
Russian government failed to show that it was necessary in a democratic society
to refuse Mr. Kablis’s request to hold a picket. The Court also held that the
blocking equated to prior restraint and the authorities failed to provide relevant
and sufficient reasons for interfering with his right to freedom of expression.
Mariya Alekhina and Others v. Russia
The European Court of Human Rights found that the detention and conviction
of three members of the punk band “Pussy Riot” for a controversial public
performance in a cathedral, as well as the banning of the distribution of videos
of their performances on the internet, amounted to a violation of the right to
freedom of expression. The members of the band performed the song “Punk
Prayer – Virgin Mary, Drive Putin Away” from the altar of Moscow’s Christ the
Saviour Cathedral in protest against the political situation in Russia and
comments that had been made by the Russian Orthodox Church following
widespread protests over the presidential elections in December 2011. The
Russian courts convicted three members of the group for incitement to religious
hatred or enmity, deemed the performance to be “extremist”, and banned access
to video recordings of the performance on the internet. The European Court
found all these measures to be disproportionate and unnecessary in a democratic
society. The European Court found that the performance contributed to a debate
of public interest, and it criticized the domestic courts for not providing relevant
and sufficient reasons for their finding that the conduct amounted to incitement.
The European Court also condemned the process adopted by the domestic courts
in order to label the video of the performance as “extremist”.

FAURISSON v. FRANCE
The United Nations Human Rights Committee (UNHRC) held that the
statements made by a French professor that argued against the existence of gas
chambers in Nazi death camps constituted hate speech. Robert Faurisson, a
French author and professor of literature at Sorbonne University, doubted the
existence of gas chambers for extermination purposes at Auschwitz and in other
Nazi concentration camps during World War II. Faurisson contested the 1990
Gayssot Act, which made it an offense to contest the existence of the category
of crimes against humanity, by claiming that it restricted his right to freedom of
expression. The UNHRC upheld the Gayssot Act because it intended to serve
the struggle against racism and anti-Semitism, which the committee argued is a
legitimate purpose to restrict the right to freedom of expression.
 CONCLUSION

Freedom of speech allows the people of our country to express themselves, and
share their ideas, views and opinions openly. As a result, the public and the
media can comment on any political activity and also express their dissent
towards anything they think is not appropriate. Various countries provide
freedom of speech to their citizens but they have certain limitations. Different
countries have different restrictions on their freedom of speech. Some countries
also do not allow this fundamental right at all and the best example being North
Korea. There, the media or the public are not allowed to speak against the
government. It becomes a punishable offence to criticize the government or the
ministers or the political parties. While freedom of speech lets the society grow
it could have certain negative outcomes. It should not be used to disrespect or
instigate others. The media too should not misuse it. We, the people of this
nation, should act responsibly towards utilizing its freedom of speech and
expression. Lucky we are to be citizens of India. It’s a nation that respects all its
citizens and gives them the rights needed for their development and growth.