Thursday 8 January 2015

Charlie Hebdo - Freedom of Expression

The murders of 7th January 2015 in Paris are profoundly shocking - BBC New Europe "Charlie Hebdo: Gun attack on French magazine kills 12."  Charlie Hebdo is a French satirical newspaper noted for satire and irreverence on many topics including all forms of religion.  In particular, it has published cartoons lampooning aspects of how certain Muslims behave though Islam is by no means the only religion to have been singled out by the magazine.  As The Telegraph 7th January wrote - the magazine has paid a terrible price for freedom of speech. 

Freedom of Expression is a right recognised to be of fundamental importance in democratic society.  The right for individuals and the media to be allowed to express forthright and critical opinion must be protected.  The right appears in many international and national documents:

A]  Universal Declaration of Human Rights - Art. 19

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

B]  International Covenant on Civil and Political Rights - Art. 19
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. 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.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The reference to "special duties and responsibilities" is particularly interesting and perhaps suggests that freedom of expression, important as it is, should perhaps be exercised with proper thought for the sensibilities of others.  That would take us into the contentious area of what is or is not socially or morally acceptable.  However that may be, so far as the law is concerned, the article permits restrictions on freedom of expression for the purposes mentioned in 3(a) and 3(b).  Article 20 of the ICCPR is also worth noting:

Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

C]  European Convention on Human Rights - woven into English law by the Human Rights Act 1998 - states in Art 10:

Freedom of expression

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.

Again, we see a reference to "duties and responsibilities" (whatever they are) and then the article goes on to state when the right of freedom of expression may be limited (e.g. to prevent disorder etc).

Human Rights Act 1998 section 12

When a court in the United Kingdom is faced with a case involving freedom of expression, the Human Rights Act 1998 section 12 may apply.  For one case where Section 12 was considered see Imutran Ltd v Uncaged Campaigns Ltd [2001] EWHC 31 (Ch).

Importance in democracy of freedom of expression

Without freedom of expression, ideas could not be publicly tested.  By subjecting ideas to public debate, the ridiculous is shown for what it is.  Iniquity, illegality, cruelty, unfairness and unconscionable conduct can be revealed.  Other ideas are improved or replaced.  The utilitarian philosopher John Stuart Mill wrote that the fullest liberty of expression is required to push arguments to their logical limits, rather than the limits of social embarrassment.   Mill argued that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."  [On Liberty 1869].   George Washington encapsulated the importance to democracy of freedom of speech by saying

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter."

We must retain the importance of freedom of expression and ask that legislators be very careful before enacting restrictions on it.  Similarly, the vital need for freedom of expression - even if it sometimes offends - must carry great weight in any law enforcement.

Restrictions on freedom of expression

The law in England has several enactments restricting freedom of expression.  For example, certain enactments deal with what may be placed on social media.  I am not going to consider them all here but see Crown Prosecution Service Guidelines on prosecuting cases involving communications sent via social media

In Scotland, the Crown Office and Procurator Fiscal has recently published similar guidance

Following the murder at Charlie Hebdo, the debate on where freedom of expression should be limited will no doubt intensify but nothing - including any religion - must be allowed to become totally protected against the well reasoned and perhaps outspoken criticism of sensible people and, as Alan Dershowitz stated:

"Being offended by freedom of speech should never be regarded as a justification for violence."


March in Paris Sunday 11th January


  1. "nothing - including any religion - must be allowed to become totally protected against the well reasoned and perhaps outspoken criticism of sensible people "

    Such a protection is worthless, and merely invites people to argue over what is well reasoned and sensible.

    Nothing must be protected totally against even the poorly reasoned or unreasoned criticism of even foolish people put as loudly and forcefully as may be, or indeed against satire, ridicule, and vulgar abuse.

    1. I agree wholeheartedly. Thanks for the comment - much appreciated.

  2. I agree with Ben as well. These "duties" are impossible to define. "Propaganda for war" is impossible to define. Incitement to "discrimination and hostilty" is impossible to define. The only one that is possible to define and defend, in my opinion, is direct, specific, incitement to violence.

    1. Concepts within international conventions are converted by States into national law. The latter has to be sufficiently precise to enable the citizen to know the prohibited conduct and its consequences.

    2. Ed (not Bystander)12 January 2015 at 13:36

      This is simply "a matter for the tribunal" (e.g. jury), aka "a question of fact" - the prosecution would allege that this and that constituted e.g. "propaganda for war", and the jury decides whether they are sure (beyond a reasonable doubt) that it in fact is.