LO2 Ventures Private
Limits to Freedom of Speech and Expression
LO2 Ventures Private Limited 20 Mar 2020

Limits to Freedom of Speech and Expression

Introduction

In a well-established democratic state or society everyone must enjoy the right to communicate freely his or her convictions, thoughts, opinions, judgments, information and ideas and share the same before the public in whatever from they want either communicable medium or visible representation, especially based on the trending issues of public importance. In context to Human Rights this is called as “Freedom of Expression”. On the other-hand, Freedom of Expression forbid the State and other citizens of the State from censorship and can only be forbidden on serious circumstance, i.e., lawful restriction. Further, it is the mother of all other liberties or freedom.

International Perspective

The term “Freedom of Expression” is broadly recognized as a basic Human Rights, Under Article 19 of the Universal Declaration of Human Rights, 1948, i.e., (UDHR) and also recognized as an International Human Rights Law in the International Covenant on Civil and Political Rights, 1966, i.e., (ICCPR). 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 "for respect of the rights or reputation of others" or "for the protection of national security or of public order (order public), or of public health or morals".

Indian Perspective

Under Article 19(1)(a) of the Constitution of India, 1950, found in Part III, which enumerates the Fundamental Rights, provides all the citizens of India the right to freedom of Speech and Expression. Even, the Preamble of the Indian Constitution itself reflect to secure to all the citizens, the “liberty of thought and expression”. To be noted, Freedom of Expression not only propagandize one’s view only but the same includes the freedom to propagandize or promote and publish the views and opinions of other people, thus it includes the “Freedom of Press”.

A reasonable human being wishes to do many things, but it may not be acceptable by a civil society. Thus, the same need to be regulated, controlled or reconciled by the authority for the sake of other citizens to not jeopardize their public interests. Therefore, Under Article 19(2) of the Constitution of India, reasonable restriction is been imposed on the right to freedom of expression.

 

Grounds of Limitation on Freedom of Expression under Constitution of India

As discussed above, apart from the liberty of expression under Article 19(1)(a), reasonable restriction is imposed under Article 19(2) on the following grounds for the interest of the public at large:

1) Security of the State: Security of State includes provoked or aggravated formation of public order, for example unlawful assembly, riots, affray, waging war against the State, etc. Thus, where an individual’s expression or speech by way of any medium incites, provoke or encourage to the commission of violence shall be a threat to the State. Therefore, reasonable restriction needs to be imposed to the interest of the nation’s security.

2) Friendly relations with Foreign States: The purpose behind this provision is to restrict unrestrained malicious propaganda against a Foreign friendly State, which mat threaten the stability of good between the native and other state.

3) Public order: The concept of public order is much broader than the ordinary prolongation of law and order. Any act of an individual which generally mess up with the public peace and tranquility disturbs public order. Thus, acts including communal disturbances and promoting strikes with an object to induce agitation among society are offences against public order.

4) Decency or Morality: This provision is enumerated to prohibit the exhibition or distribution or sale of obscene objects, words, etc. in public places. In the interest of decency and morality under Section 292 and Section 294 of the Indian Penal Code, 1980, enumerates the instances of restriction on the freedom of Speech and Expression.

5) Contempt of Court: Reasonable restriction can be imposed if an individual’s acts amount to contempt of court, it may be either civil or criminal contempt.

6) Defamation: When a person’s reputation is hampered or injured by way of publishing any statement, amounts to defamation. The term defamation is defined under Section 499 of the Indian Penal Code, 1980.

7) Incitement to an Offence: An act conferring inciting or instigating people to commit an offence under liberty of expression is restricted.

 

Grounds of Limitation on Freedom of Expression under ICCPR

As discussed above, Article 19(1) & Article 19(2) of the International Covenant on Civil and Political Rights, 1976, enumerates that, “everyone shall have the right to hold one’s own opinion and ideas without interference and shall also have the right to freedom of expression which includes freedom to seek, receive and impart information and ideas of any kind, either in written or print or in form of art or pictures or through any media of their individual choice.”  Whereas, Under Article 19(3) of the International Covenant on Civil and Political Rights, 1976, enumerates that, “the exercise of the rights given under Article 19 (1) & (2) carries with it special duties and responsibilities, which are subjected to certain limitations and shall be provided by law for rights and reputation of others and protection of national security or public order or public health or morals.

Application of Restrictions to the Right of Freedom of Speech and Freedom of Expression in Europe and South American Nations

The scope of limit in respect of freedom of speech in several countries are addressed by their constitutions. All this constitutions are unanimous on a single argument and that is thought the freedom of speech is a constitutionally guaranteed fundamental right, it is not an absolute right either, therefore limitations are applied to the right of freedom of speech at varied levels.

Freedom of Speech as it has never been intended to be an absolute right, in contrast to the First Amendment of the United States Constitution, the definition in the Declaration of Human and Civic Rights,1789, provided limits to the right of freedom of speech and expression. Article 10 of the Constitution states – “no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” (DÉCLARATION DES DROITS DE L'HOMME ET DU CITOYEN DE 1789 art. 10.) Article 11 provides that, “any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” The European Convention on Human Rights also mentions that freedom of speech and expression are associated with the sense of duties and responsibilities, therefore such rights are “subject to formalities, conditions, restrictions or penalties as are prescribed by law.” It further states that such restrictions are required for a democratic nation considering the issues of “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.” 

Such restrictions are widely found in the legislations of China and Ukraine. The Chinese cybersecurity Law imposes restrictions on usage of internet if it is found that such a use is satisfying the criteria of – “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” Similar prohibited expressions apply under China’s Regulation on the Administration of Publishing, including a prohibition on the destruction of “public order or . . . public stability.”

Ukraine has started putting restrictions to the right to freedom of speech in the context of Euromaidan Revolution in the year 2014 and with the conflict of Russian Federation. Ukrainian law along with the provisions of censoring, it also has the penal provisions to restrict in the form of language quotas for broadcasting, print and publishing media in languages other than Ukrainian. The law also puts ban on films which contain propaganda of an “aggressor state”, because this aggressor state image of Ukraine is prohibited from being exhibited by the law. Article 10 of the Constitution states – “as the manifestation of such opinions does not interfere with the established Law and Order.” Article 11 of the Constitution provides that “any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”

France has an outstanding standard of legal parameters to limit the freedom of speech and expression which is adopted by other constitutions of several nations. French laws seek to balance freedom of speech with other imperatives, as shown by extensive jurisprudence on this topic. The Cour de cassation, France’s highest court for civil and criminal matters, established the general principle that “restrictions to freedom of expression should be interpreted narrowly.” It also emphasizes that such restrictions must also be proportional to the expected harm which is assumed to be detrimental for the society. A decision in the year 1933 decision by the Council of State, which is the highest judicial authority in France regarding administrative law. In that case, the mayor of the City of Nevers prohibited the plaintiff from holding a public meeting, in response to protests from teachers’ unions. The Council of State struck down the mayor’s order prohibiting the meeting on the grounds that it was disproportional to the risk of public disorder that the meeting presented. While this decision was a classic case of freedom of assembly of which the principle of proportionality applies to freedom of expression as well. The decision of this case was cited in a 2014 decision in which the Council of State upheld the prohibition of a public performance by controversial comedian Dieudonné M’bala M’bala, because it was justified by the high risk that he would disturb public order by engaging in illegal hate speech. The French law has set a standard of imposition of restrictions given the yardsticks of Freedom of Speech, Limits Related to the Rights of Others, Limits Related to Public Order.

Several other countries such as Argentina, Brazil, Canada, Germany, Israel, Japan, Netherlands, New Zealand, Sweden, Ukraine, United Kingdom have imposed similar restrictions on freedom of speech and expression on the similar note with France.

 

 

Conclusion

To conclude this article, it can be easily understood from the above discussion that among all the Fundamental Rights the most important is the Right to Freedom of Speech and Expression. Where it includes broadcasting of one’s view by script writing or in words or through audiovisual instrumentalities or advertisement or any other communication channel. It also widens its scope towards the right to information, freedom of press, etc.

In the light of the limitation or restriction imposed on the right to freedom of expression should be reasonable and with proper nexus i.e., there should be a rationality of relationship between the restriction imposed and achievements of the grounds of restriction. The restriction imposed on liberty of expression in the interest of the public at large include not only utterances as are directly provokes to lead to disturbances but also include those that have the propensity to lead to disturbances.

The Right to Freedom of Speech and Expression are guaranteed by the constitutions of nations and with this guaranty the reverse effect of such guaranty is reflected through the limit which are imposed to such right because right is associated with due responsibilities and duties. The concept of Limits to the right of Freedom of Speech and Expression is thus a vast thinking perception which is interrelated and an essential feature of a civilized democratic society.

Did you find this write up useful? YES 1 NO 0
  20 Mar 2020 3:26pm
Thanks for sharing the informative article.
Reply
Priyanka Debnath  21 Mar 2020 3:41am
Thank you
Reply
charvi   20 Mar 2020 2:55pm
I think this is one of the information that is most important to all. The article is fantastic. Good job!
Reply
Priyanka Debnath  21 Mar 2020 3:42am
Thank you! Much appreciated!!
Reply
SAARTH A SoOLEGAL Technologies Initiative
Active Members view all
New Members view all
Legal News Headlines
×

C2RM… To Know More

Something Awesome Is In The Work

0

DAYS

0

HOURS

0

MINUTES

0

SECONDS

Sign-up and we will notify you of our launch.
We’ll also give some discount for your effort :)

* We won’t use your email for spam, just to notify you of our launch.
×

SAARTH… To Know More

Launching Soon : SAARTH, your complete client, case, practise & document management SAAS application with direct client chat feature.

If you want to know more give us a Call at :+91 98109 29455 or Mail info@soolegal.com