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In a favorable judgment of the Court, the ECHR re-affirmed its commitment to protect free speech in matters of public interest.
According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress, as well as each individual's self-fulfillment.
Subject to paragraph 2 of Article 10 ECHR, it is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10(2), which must, however, be construed strictly. The need for any restrictions must be established convincingly.
The test of “necessity in a democratic society”, according to the court, requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”; whether it was proportionate to the legitimate aim pursued; and whether the reasons given by the national authorities to justify it are relevant and sufficient (see also the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not however, unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.
The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In cases such as the present one, the Court states that the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “public watchdog” by imparting information of serious public concern.
So, the central question in this analysis is not the question of freedom of speech, because that 'right' is NOT in doubt. Article 10 makes that clear (albeit with limitations) and the European Court of Human Rights constantly reiterates the point, as we have just seen. The critical issue is HOW and WHEN the media should exercise that right. There needs to be a clear and arguably legitimate reason for publication.
In respect of the Danish cartoons, therefore, where can we locate that legitimate cause for publication? Simply to show that journalists can exercise free speech would not appear to be a good reason to publish. Therefore, at the centre of this debate is whether it was responsible journalism to publish the cartoons knowing of the probable backlash from around the Muslim world. In light of what has happened since the publication, should we not question the judgment of those editors who went to press with the cartoons?
It is no longer in doubt that the enabling laws and judicial pronouncements that endorse freedom of expression are not meant to be blank cheques. There are limitations meant to safeguard other people’s rights and to protect the public good. For instance, Article 10 (2) of the ECHR qualifies freedom of expression under 10(1) by providing for a series of issues, like state security, public health and other people’s freedom, which may justify a breach of free expression. The article reads:
“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 critical challenge in understanding the limitations legally imposed on freedom of expression is the interpretation of terms like, “interest of national security”, “territorial integrity” and the “protection of health and morals.” These terms often grouped as issues of “public interest”, (another confusing term) are at the heart of the whole debate around freedom of speech. The interpretation given to those terms will be the determining factor in assessing whether there is media freedom in any particular country or not.
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Wilfred Mamah
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