CoE’s guide on free-speech restrictions
The Council of Europe (CoE) has published an overview of the human-rights standards that apply to the imposition of criminal sanctions on the exercise of the right to freedom of expression.
The guide describes freedom of expression as “one of the essential foundations of democracy”.
“The right to freedom of expression protects political speech, discussion on matters of public importance, artistic expression, information of a commercial nature, and entertainment such as music,” it states.
The human-rights body points out that its protection extends to ideas and opinions that people may disagree with or find offensive.
Use criminal law ‘sparingly’
, however, adds that freedom of expression is not an absolute right and may be subject to restrictions or penalties prescribed by civil, administrative, or criminal law when necessary.
“Due to the harsh nature of criminal law, which may result in imprisonment or other severe sanctions, states are required to resort to criminal law sparingly,” it says.
The document adds that the use of the criminal law to restrict “less societally harmful” forms of speech implies risks for the protection of human rights.
It expresses concern that, according to data gathered by the CoE platform on safety of journalists, instances of detention and imprisonment of journalists have risen sharply since 2019.
Principles
This guide sets out the main risks associated with the use of criminal law to sanction particular forms of expression and the overarching principles, as developed by CoE bodies, to mitigate against those risks.
It then focuses on five areas of law in particular:
- The use of criminal law against hate speech,
- The use of criminal law to protect reputation, through defamation and insult laws,
- The use of criminal law to restrict the publication of confidential information,
- The use of criminal law to combat terrorist propaganda, and
- The criminalisation of ‘disinformation’ (often mentioned as ‘fake news’).
The CoE guide is aimed at legislators, civil society, civil servants, media, and other policymakers.
It provides an overview of standards developed through the judgments of the European Court of Human Rights, as well as policy guidance issued by CoE bodies such as the Committee of Ministers, the Parliamentary Assembly, and the European Commission for Democracy through Law.