The right to freedom of opinion and expression is a complex right that includes the right to seek, receive and impart information and ideas of all kinds and through whatever medium. This means, inter alia, that when an individual’s right to freedom of expression is unlawfully restricted, the right of others to ‘receive’ information and ideas is also violated.
The Inter-American Court of Human Rights elaborates on the meaning of the freedom of expression in its Advisory Opinion No. 5 where it was requested by the Government of Costa Rica to give an advisory opinion on whether the law requiring that journalists be licensed is compatible with the American Convention . A journalist in Costa Rica was sentenced to three months in prison for the illegal exercise of journalism. The journalist challenged his sentence and the law under which it was imposed, bringing the case before the Inter-American Commission on Human Rights. The Commission found that neither the decision handed down by the Costa Rican court, nor the Costa Rican law that requires that journalists be licensed in order to practice, constituted a violation of the right to freedom of expression.
Inter-American Court of human Rights
Advisory Opinion No. 5
OC-5/85, Opinion of 13 November 1985
Keywords: expression – provided by law
30. Article 13 indicates that freedom of thought and expression “ includes freedom to seek, receive, and impart information and ideas of all kinds?. “ This language establishes that those to whom the Convention applies not only have the right and freedom to express their own thoughts but also the right and freedom to seek, receive and impart information and ideas of all kinds. Hence, when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to “ receive “ information and ideas. The right protected by Article 13 consequently has a special scope and character, which are evidenced by the dual aspect of freedom of expression. It requires, on the one hand, that no one be arbitrarily limited or impeded in expressing his own thoughts. In that sense, it is a right that belongs to each individual. Its second aspect, on the other hand, implies a collective right to receive any information whatsoever and to have access to the thoughts expressed by others.
31. In its individual dimension, freedom of expression goes further than the theoretical recognition of the right to speak or to write. It also includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible. When the Convention proclaims that freedom of thought and expression includes the right to impart information and ideas through “ any? medium, “ it emphasizes the fact that the expression and dissemination of ideas and information are indivisible concepts. This means that restrictions that are imposed on dissemination represent, in equal measure, a direct limitation on the right to express oneself freely. The importance of the legal rules applicable to the press and to the status of those who dedicate themselves professionally to it derives from this concept.
32. In its social dimension, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communicate his own views to others, as well as the right to receive opinions and news from others. For the average citizen it is just as important to know the opinions of others or to have access to information generally as is the very right to impart his own opinions.
33. The two dimensions mentioned (supra 30) of the right to freedom of expression must be guaranteed simultaneously. One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor. It is equally true that the right to impart information and ideas cannot be invoked to justify the establishment of private or public monopolies of the communications media designed to mold public opinion by giving expression to only one point of view.
34. If freedom of expression requires, in principle, that the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media, it must be recognized also that such media should, in practice, be true instruments of that freedom and not vehicles for its restriction. It is the mass media that make the exercise of freedom of expression a reality. This means that the conditions of its use must conform to the requirements of this freedom, with the result that there must be, inter alia, a plurality of means of communication, the barring of all monopolies thereof, in whatever form, and guarantees for the protection of the freedom and independence of journalists.
70. Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.
In this Advisory Opinion, the Inter-American Court emphasised the importance of the right to freedom of expression and stressed that it includes the right of the public to receive information as well as the right of individuals to disseminate it. Thus, the right to freedom of expression includes both an individual and a social dimension and both dimensions must be guaranteed simultaneously. The Court confirmed this view in subsequent individual cases (See Ivcher Bronstein v. Peru , Series C No. 74, Judgement of 6 February 2001, paras. 147 –148-149 and Olmedo Bustos et al. v. Chile (‘The Last Temptation of Christ’ Case), Series C No. 73, Judgement of 5 February 2001, paras. 64-65-66-67-6).
The European Court of Human Rights has elaborated upon the scope of the freedom of expression in many cases. The following case, Müller et al. v. Switzerland , is interesting because the European Court confirms that the right to freedom of expression also includes freedom of artistic expression. The applicants had put on an exhibition of contemporary art including three sexually explicit paintings depicting fellatio, sodomy and sex with animals. The exhibition, which has been widely advertised, was open to all and free of charge. A catalogue was printed for the preview, containing photographic reproductions of the art work. On the official opening day, the principal public prosecutor lodged proceedings demanding that the paintings be destroyed on the grounds that they were obscene. Following criminal proceedings, the paintings were confiscated, although not destroyed, and the applicants were fined. The paintings were later returned. The European Court found in favour of Switzerland that the restriction on the freedom of expression of the artist was justified under Article 10 in order to protect public morals.
European Court of Human Rights
Application No. 10737/84
Judgement of 24 May 1988
Keywords: expression –health or morals
AS TO THE LAW
26. The applicants complained that their conviction and the confiscation of the paintings in issue violated Article 10 of the Convention, which provides:
“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 (art. 10) 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.”
27. The applicants indisputably exercised their right to freedom of expression - the first applicant by painting and then exhibiting the works in question, and the nine others by giving him the opportunity to show them in public at the “Fri-Art 81” exhibition they had mounted.
Admittedly, Article 10 does not specify that freedom of artistic expression, in issue here, comes within its ambit; but neither, on the other hand, does it distinguish between the various forms of expression. As those appearing before the Court all acknowledged, it includes freedom of artistic expression – notably within freedom to receive and impart information and ideas – which affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Confirmation, if any were needed, that this interpretation is correct, is provided by the second sentence of paragraph 1 of Article 10, which refers to “broadcasting, television or cinema enterprises”, media whose activities extend to the field of art. Confirmation that the concept of freedom of expression is such as to include artistic expression is also to be found in Article 19§ 2 of the International Covenant on Civil and Political Rights , which specifically includes within the right of freedom of expression information and ideas “in the form of art”.
Two threads help tie together the Article 10 cases under the European system. The first thread might be called the ‘exclusive means’ factor, although neither the European Court nor the Commission has ever clearly articulated its application or even its existence. Nevertheless, this factor plays an important role in the case-law of the European Court under Article 10. The concept is perhaps clearest if expressed as a question the Commission or Court may pose: Is the applicant’s chosen means of expression the only means by which he can express his ideas or convey his information? If the answer is ‘yes’, the applicant will be eligible for protection under Article 10(1). Thus almost any form of artistic activity falls within the scope of ‘exclusive means’. The second thread might be called the ‘public interest’ or ‘public debate’ factor. In their discussions of what activities and publications fall under the protection of Article 10, the Commission and Court consider the degree to which a given expression serves a function in general public life (see, e.g., Barthold v. Germany , Application No. 8734/79, Judgement of 25 May 1985, para. 42).
In a recent case concerning the right to freedom of expression, the African Commission on Human and Peoples’ Rights drew inspiration from both the European Court of Human Rights and the Inter-American Court of Human Rights when elaborating on the meaning of the right to freedom of expression and found that the right also includes political expression. In this case Mr. Ghazi Suleiman was invited by a group of human rights defenders to deliver a public lecture in Sinnar, Blue Nile State. He alleges that he was prohibited from travelling to Sinnar by security officials who threatened that if he made the trip he would be arrested.
The Law Office of Ghazi Suleiman v. Sudan
African Commission on Human and Peoples’ Rights
Communication No. 228/99
Sixteenth Activity Report 2002-2003, Annex VII
Keywords: expression - association –assembly –movement –liberty and security
48. The European Court on Human Rights recognises that “freedom of political debate is at the very core of the concept of a democratic society?” [?].
49. The African Commission’s view affirms those of Inter-American Court of Human Rights which held that: “ freedom of expression is a cornerstone upon which the very existence of a society rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.”
51. The charges levied against Mr. Ghazi Suleiman by the government of Sudan indicate that the government believed that his speech threatened national security and public order.
52. Because Mr. Suleiman’s speech was directed towards the promotion and protection of human rights “it is of special value to society and deserving of special protection.”
53. In keeping with its important role of promoting democracy in the Continent, the African Commission should also find that a speech that contributes to political debate must be protected. The above challenges to Mr. Ghazi Suleiman’s freedom of expression by the government of Sudan and violate his right to freedom of expression under Article 9 of the African Charter r. [?].