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    Freedom of Expression and Online Restrictions

    Module 1: Digital Rights and Emerging Challenges

    In 2022, international digital rights advocacy organisation Access Now published a report documenting the use of digital technology by both authoritarian and democratic regimes in Eastern Europe and Central Asia to “advance their interests at the expense of people’s freedoms.” For example, it notes that “artificial intelligence algorithms are used for racial profiling, spyware tools threaten people’s privacy, and digital identity programs undermine data protection and enable discrimination.”(1)

    In parts of Europe, concerns have been raised about “the expansion of ubiquitous data collection systems, including biometric surveillance, powered by artificial intelligence (AI) and algorithmic decision-making,” “internet shutdowns and other network disruptions, as well as mass and targeted surveillance,” “government hacking or state-sponsored online harassment campaigns,” and “the expansion of digital authoritarian practices outside national borders through targeting diaspora or the export of surveillance technology.”(2) The effect of these measures is that freedom of expression online is restricted, often unjustifiably.

    Article 19(2) of the ICCPR stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice. The UN General Comment No. 34 further explains that article 19(2) includes internet-based modes of communication.(3)

    In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed that:(4)

    [T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.  

    While freedom of expression is clearly protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, given how frequently the principle is enunciated in treaties, as well as other soft law instruments. Most human rights treaties, including those dedicated to the protection of the rights of specific groups — such as women, children, and people with disabilities — also make explicit mention of freedom of expression.(5) The European Convention on Human Rights (the ‘ECHR’) provides protection for freedom of expression through 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.

    The European Court of Human Rights (the ‘ECtHR’) has noted in a number of cases that the Internet provides an unprecedented platform for the exercise of freedom of expression,(6) holding that, in view of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information generally.(7)

    The ECtHR has held that the blocking of access to the Internet may be a violation of Article 10, on the basis it offends the rights set forth in Article 10 which are secured “regardless of frontiers”.(8) Further, the Court has observed that an increasing amount of services and information is available only via the Internet(9) and that political content ignored by the traditional media is often shared via the Internet thereby facilitating the emergence of ‘citizen journalism’.(10)

    In the context of online speech, the ECtHR has emphasised that Article 10 is to apply to communication on the Internet, whatever the type of message being conveyed and even when the purpose is profit-making in nature.(11) It recently held in favour of a political party that made available a mobile application allowing voters to share anonymous photographs of their invalid ballot papers and their comments on why they were voting in this way.(12)

    With respect to press freedom, the ECtHR has reiterated that, having regard to the role the Internet plays in the context of press activity and its importance for the exercise of the right to freedom of expression generally, the absence of an appropriate legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog”. This court has noted that the exclusion of such information from the legislative guarantees provided to journalists in the exercise of their role may give rise to an unlawful interference with press freedom.(13)

    At the European Union level, press freedom is considered a fundamental right established in the EU Charter of Fundamental Rights, with its provision on press freedom similar to that of the European Convention on Human Rights (ECHR). Article 11 of the Charter states as follows:

    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.
    2. The freedom and pluralism of the media shall be respected.

    The EU has been to the forefront in legislating for protections around privacy in the face of rapid technological advancements. The Court of Justice of the European Union (CJEU) has played a significant role to implementing those protections, often to the detriment of press freedom. These modules explore how the CJEU, and the ECtHR, have shaped the law in relation to press freedom in Europe, and indeed elsewhere, through a series of seminal judgments on a range of novel issues that have emerged as a consequence of online speech.

    Considerations for speech online

    The ECtHR has recognised that the Internet can facilitate clearly unlawful speech, including defamatory remarks, hate speech and speech inciting violence. The emphasis is on the speed with which such informatio0n can be disseminated, its reach, and its availability, theoretically forever.(14)

    The ECtHR has distinguished the Internet from print media, especially as regards the capacity to store and transmit information. It has acknowledged that the electronic network, serving billions of users worldwide, is not and potentially will never be subject to the same regulations and control, and that the policies governing reproduction of material from the printed media and the Internet may differ. The rules governing the latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of fundamental rights and freedoms.(15)

    However, the ECtHR has also noted that while social media platforms for example remain powerful communication tools, the choices inherent in the use of the Internet and social media mean that online information does not have the same effect as information published or broadcast through other media,(16) and that a telephone interview broadcast in a programme available on an Internet site had a less direct impact on viewers than a television programme.(17)

    The CJEU has also played a significant role in developing standards on online speech. With the introduction of the Fundamental Rights Charter in 2000, Article 11 of that treaty ‘corresponds’ to Article 10 of the ECHR subject to some deviations.  

    Although the Explanatory Note for Article 11 does ‘not as such have the status of law’, it provides essential information in explaining the textual differences between the Charter and ECHR.(18) For example, in the note explicitly stating Article 10(2) ECHR and describing the role of Article 52(3) of the Charter in making the ‘meaning and scope of this right’ as the same as that guaranteed by the ECHR, it is observed that any limitations on the core freedom may not exceed those provided in Article 10(2). Article 11(2) of the Charter explicitly references the media in relation not only to the CJEU’s ‘case law [and legislation] regarding television’ but also relates to the ECtHR’s previous statements regarding the media’s broader societal role, as endorsed by the CJEU’s statement that the media plays a significant role as a public ‘watchdog’.(19)  

    The CJEU defines freedom of expression as including “the expression of opinions and the freedom to receive and impart information”.(20)The case law of the CJEU is particularly interesting in the way it has balanced the right to freedom of expression online with the right to privacy. For example, in the debate between the right to be forgotten and the right to freedom of expression, it is the right to privacy that is emphasised. The CJEU has developed detailed balancing principles based on the idea in relation to the right to be forgotten that the ECtHR has expanded on, as discussed in more detail in Module 2 on privacy and date protection.(21)

    Footnotes

    1. Access Now, available at https://www.accessnow.org/wp-content/uploads/2022/10/Digital-dictatorship-authoritarian-tactics-and-resistance-in-Eastern-Europe-and-Central-Asia-Access-Now.pdf. Back
    2. European Parliament, ‘Digital technologies as a means of repression and social control’ (2021) (accessible at https://www.europarl.europa.eu/RegData/etudes/STUD/2021/653636/EXPO_STU(2021)653636_EN.pdf). Back
    3. See UNHRC, ‘General Comment 34 on Article 19: Freedom of Expression’ (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf) at para. 12. Back
    4. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, (2016) at para. 1 (accessible at https://digitallibrary.un.org/record/845728?ln=en). Back
    5. Id. Back
    6. Delfi AS v. Estonia [GC], no. 64569/09, § 110, ECHR 2015; Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, § 52, ECHR 2015 (extracts). Back
    7. Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009; Delfi AS v. Estonia [GC], § 133. Back
    8. Yıldırır v. Turkey, no. 21482/03, § 67, 24 November 2009. Back
    9. Kalda v. Estonia, no. 17429/10, § 52, 19 January 2016 Back
    10. Cengiz and Others v. Turkey, § 52. Back
    11. Ashby Donald and Others v. France, no. 36769/08, § 34, 10 January 2013. Back
    12. Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, § 91, 20 January
      2020.
      Back
    13. Magyar Jeti Zrt v. Hungary, no. 11257/16, § 60, 4 December 2018. Back
    14. Delfi AS v.Estonia [GC], § 110 above n 7. Back
    15. Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR 2011(extracts). Back
    16. Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 119,
      ECHR 2013 (extracts).
      Back
    17. Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland, no. 34124/06, § 64, 21June 2012. Back
    18. Explanations relating to the Charter of Fundamental Rights (2007/C-303/02): explanation on Article 11. Back
    19. C-421/07 Frede Damgaard [2009] ECR I-2629 [AG 81], citing The Observer & The Guardian Ltd v United Kingdom App No 13585/88 (ECtHR, 26th November 1991) para 59. N Back
    20. Tietosuojavaltuutettu v. Satakunnan Markkinapörssi E.C.R. I-9831 [2008] Case C-73/07. Back
    21. Google Spain v. AEPD (2016) Back