Freedom of speech by country
Freedom of speech is the concept of the inherent human right to voice one's opinion publicly without fear of censorship or punishment. "Speech" is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless the degree to which the right is upheld in practice varies greatly from one nation to another. In many nations, particularly those with relatively authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms (see propaganda model) and there are different approaches to issues such as hate speech, obscenity, and defamation laws even in countries seen as liberal democracies.
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The United Nations Universal Declaration of Human Rights, adopted in 1948, provides, in Article 19, that:
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.
Technically, as a resolution of the United Nations General Assembly rather than a treaty, it is not legally binding in its entirety on members of the UN. Furthermore, whilst some of its provisions are considered to form part of customary international law, there is dispute as to which. Freedom of speech is granted unambiguous protection in international law by the International Covenant on Civil and Political Rights which is binding on around 150 nations.
In adopting the United Nations Universal Declaration of Human Rights, Ireland, Italy, Luxembourg, Monaco, Australia and the Netherlands insisted on reservations to Article 19 insofar as it might be held to affect their systems of regulating and licensing broadcasting.
The majority of African constitutions provide legal protection for freedom of speech. However, these rights are exercised inconsistently in practice. The replacement of authoritarian regimes in Kenya and Ghana has substantially improved the situation in those countries. On the other hand, Eritrea allows no independent media and uses draft evasion as a pretext to crack down on any dissent, spoken or otherwise. One of the poorest and smallest nations in Africa, Eritrea is now the largest prison for journalists; since 2001, fourteen journalists have been imprisoned in unknown places without a trial. Sudan, Libya, and Equatorial Guinea also have repressive laws and practices. In addition, many state radio stations (which are the primary source of news for illiterate people) are under tight control and programs, especially talk shows providing a forum to complain about the government, are often censored. Also countries like Somalia and Egypt provide legal protection for freedom of speech but it is not used publicly.
In light of South Africa's racial and discriminatory history, particularly the Apartheid era, the Constitution of the Republic of South Africa of 1996 precludes expression that is tantamount to the advocacy of hatred based on some listed grounds. Freedom of speech and expression are both protected and limited by a section in the South African Bill of Rights, chapter 2 of the Constitution. Section 16 makes the following provisions:
16. Freedom of expression
1. Everyone has the right to freedom of expression, which includes
- a. freedom of the press and other media;
- b. freedom to receive or impart information or ideas;
- c. freedom of artistic creativity; and
- d. academic freedom and freedom of scientific research.
2. The right in subsection (1) does not extend to
- a. propaganda for war;
- b. incitement of imminent violence; or
- c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
In 2005, the South African Constitutional Court set an international precedent in the case of Laugh It Off Promotions CC v South African Breweries International when it found that the small culture jamming company Laugh-it-Off's right to freedom of expression outweighs the protection of trademark of the world's second largest brewery.
Despite the Tunisian revolution that led the Arab Spring, freedom of speech is still a controversial issue and a subject of uncertainty. Artists, journalists, and citizens still face many kinds of harassment when they try to express their ideas freely. Making things more complicated is a lack of experience and traditions in the field of free speech on the part of Tunisian justice and judges.
On 13 June 2013 Tunisian Rapper, Alaa Yacoubi (aka "Weld El 15"), was imprisoned and given a two-year jail sentence because his song "El boulisia Kleb" ("Cops Are Dogs") was considered an incitement to violence and hatred. The court judgement was the subject of an appeal and the decision was announced for 2 July 2013, while Alaa Yaacoubi remains in prison.
Several Asian countries provide formal legal guarantees of freedom of speech to their citizens. These are not, however, implemented in practice in some countries. Barriers to freedom of speech are common and vary drastically between ASEAN countries. They include the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Les Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the killing of journalists in the Philippines. Freedom of expression is significantly limited in China and North Korea. Freedom of speech has improved in Myanmar in recent years, but significant challenges remain. There is no clear correlation between legal and constitutional guarantees of freedom of speech and actual practices among Asian nations.
- Article 27: Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.
- 第二十七條: 香港居民享有言論、新聞、出版的自由，結社、集會、遊行、示威的自由，組織和參加工會、罷工的權利和自由。
- Article 30: The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe upon the freedom and privacy of communication of residents except that the relevant authorities may inspect communication in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences.
- 第三十條: 香港居民的通訊自由和通訊秘密受法律的保護。除因公共安全和追查刑事犯罪的需要，由有關機關依照法律程序對通訊進行檢查外，任何部門或個人不得以任何理由侵犯居民的通訊自由和通訊秘密。
The Indian Constitution ostensibly guarantees freedom of speech to every citizen, but itself allows significant restrictions. In India, citizens are free to criticize government, politics, politicians, bureaucracy and policies. However, speech can be restricted on grounds of security, morality, and incitement. There have been landmark cases in the Indian Supreme Court that have affirmed the nation's policy of allowing free press and freedom of expression to every citizen, with other cases in which the Court has upheld restrictions on freedom of speech and of the press. Article 19 of the Indian constitution states that:
All citizens shall have the right —
- to freedom of speech and expression;
- to assemble peaceably and without arms;
- to form associations or unions;
- to move freely throughout the territory of India;
- to reside and settle in any part of the territory of India; and
- to practise any profession, or to carry on any occupation, trade or business.
These rights are limited so as not to affect:
- The integrity of India
- The security of the State
- Friendly relations with foreign States
- Public order
- Decency or morality
- Contempt of court
- Defamation or incitement to an offence
Freedom of speech is restricted by the National Security Act of 1980 and in the past, by the Prevention of Terrorism Ordinance (POTO) of 2001, the Terrorist and Disruptive Activities (Prevention) Act (TADA) from 1985 to 1995, and similar measures. Freedom of speech is also restricted by Section 124A of the Indian Penal Code, 1860 which deals with sedition and makes any speech or expression which brings contempt towards government punishable by imprisonment extending from three years to life. In 1962 the Supreme Court of India held this section to be constitutionally valid in the case Kedar Nath Singh vs State of Bihar.
Blasphemy against religion is illegal in Indonesia under blasphemy laws.
In some cases in Indonesia to criticize the government by mentioning a name of government administration is still considered wrong.
Blasphemy against Islam is illegal in Iran.
According to the Press Freedom Index for 2007, Iran ranked 166th out of 169 nations. Only three other countries - Eritrea, North Korea, and Turkmenistan - had more restrictions on news media freedom than Iran. The government of Ali Khamenei and the Supreme National Security Council imprisoned 50 journalists in 2007 and all but eliminated press freedom. Reporters Without Borders (RWB) has dubbed Iran the "Middle East's biggest prison for journalists."
On 11 July 2011, the Knesset passed a law making it a civil offence to publicly call for a boycott against Israel, defined as "deliberately avoiding economic, cultural or academic ties with another person or another factor only because of his ties with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage". According to the law anyone calling for a boycott can be sued and forced to pay compensation, regardless of actual damages. At the discretion of a government minister, they may also be prevented from bidding in government tenders. In a survey of Israelis conducted in 2014, the Israeli Democracy Institute found that 46% of Israelis believe that "harsh, public criticism" of Israel should be outlawed.
Freedom of speech is guaranteed by Chapter III, Article 21 of the Japanese constitution. There are few exemptions to this right and a very broad spectrum of opinion is tolerated by the media and authorities.
Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed. (集会、結社及び言論、出版その他一切の表現の自由は、これを保障する。)
No censorship shall be maintained, nor shall the secrecy of any means of communication be violated. (検閲は、これをしてはならない。通信の秘密は、これを侵してはならない。)
In May 2008, the Prime Minister of Malaysia Datuk Seri Abdullah Ahmad Badawi put forward a headline "Media should practice voluntary self-censorship", saying there is no such thing as unlimited freedom and the media should not be abashed of "voluntary self-censorship" to respect cultural norms, different societies hold different values and while it might be acceptable in secular countries to depict a caricature of Muhammad, it was clearly not the case here. "It is not a moral or media sin to respect prophets". He said the Government also wanted the media not to undermine racial and religious harmony to the extent that it could threaten national security and public order. "I do not see these laws as curbs on freedom. Rather, they are essential for a healthy society."
Articles 19 of the Constitution of Pakistan guarantees freedom of speech and expression, and freedom of the press with certain restrictions. Blasphemy against Islam is illegal in Pakistan. Military establishment is even more powerful when it comes to censorship in Pakistan, since all the state machinery is under its control.[contradictory]
People's Republic of China (mainland)Edit
Article 35 of the Constitution of the People's Republic of China claims that:
English:- Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
There is heavy government involvement in the media, with many of the largest media organizations being run by the Communist-Party-led government. References to democracy, the free Tibet movement, Taiwan as an independent country, the Tiananmen Square Massacre, the 2014 Hong Kong protests, the Arab Spring, certain religious organizations and anything questioning the legitimacy of the Communist Party of China are banned from use in public and blocked on the Internet. Web portals including Microsoft's MSN have come under criticism for aiding in these practices, including banning the word "democracy" from its chat-rooms in China.
Currently, social networking sites such as Twitter, Facebook, and Snapchat are banned as a whole and books and foreign films are subject to active censorship. The biggest search engine, Google however, was unbanned on the 25th anniversary of the massacre of Tiananmen Square. However, usage is still limited. Beijing has also lifted bans on foreign websites within the Shanghai free trade zone. Its censorship tactics vary from relatively moderate way of using monitoring systems and firewalls to an extreme end of jailing journalists, bloggers, and activists, as we can see from the recent example of the jailed Chinese activist Liu Xiaobo. Although China’s constitution deals with citizens’ freedom of speech, the language has been vague, thus giving more space for the government’s arbitrary and unilateral judgements. For example, according to the Article 5 of the “Computer Information Network and Internet Security, Protection and Management Regulations,” issued by the Ministry of Public Safety in 1997, it states:
No unit or individual may use the Internet to create, replicate, retrieve, or transmit the following kinds of information:
- Inciting to resist or violate the Constitution or laws or the implementation of administrative regulations;
- Inciting to overthrow the government or the socialist system;
- Inciting division of the country, harming national unification;
- Inciting hatred or discrimination among nationalists or harming the unity of the nationalities;
- Making falsehoods or distorting the truth, spreading rumours, destroying the order of society;
- Promoting feudal superstitions, sexually suggestive material, gambling, violence, murder;
- Engaging in terrorism or inciting others to criminal activity; openly insulting other people or distorting the truth to slander people;
- Injuring the reputation of state organs;
- Other activities against the Constitution, laws or administrative regulations.
In January 2013, hundreds of protesters gathered in front of the headquarters of Southern Weekly after Guangdong's propaganda chief, Tuo Zhen, allegedly rewrote the newspaper's New Year's editorial entitled "China's Dream/ The Dream of Constitution(中国梦，宪政梦)," which called for constitutional reform to better guarantee individual citizens' rights. This is seen, though small, as a victory for press freedom in China; it was the largest and most open protest for free speech in China in decades and the result itself favoured the press, the Guangdong propaganda ministry agreeing not to directly intervene in editorial decisions.
Article III Section 4 of the 1987 Constitution of the Philippines specifies that no law shall be passed abridging the freedom of speech or of expression. However, some laws limit this freedom, for example:
- Certain sections of the Flag and Heraldic Code require particular expressions and prohibit other expressions.
- Title thirteen of the Revised Penal Code of the Philippines criminalizes libel and slander by act or deed (slander by deed is defined as "any act ... which shall cast dishonor, discredit or contempt upon another person."), providing penalties of fine or imprisonment. In 2012, acting on a complaint by an imprisoned broadcaster who dramatised a newspaper account reporting that a particular politician was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night, the United Nations Commission on Human Rights ruled that the criminalization of libel violates freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights, commenting that "Defamations laws should not ... stifle freedom of expression" and that "Penal defamation laws should include defense of truth."
- Blasphemy against decency and good customs is an offense which is punishable by a prison term, a fine, or both. Other offenses against decency and good customs include: public displays or exhibitions which glorify criminals or condone crimes, serve no other purpose but to satisfy the market for violence, lust or pornography, offend any race or religion, tend to abet traffic in and use of prohibited drugs, and are contrary to law, public order, morals, and good customs, established policies, lawful orders, decrees and edicts; publishing or selling obscene literature; selling, giving away, or exhibiting films, prints, engravings, sculpture or literature which are offensive to morals; publicly expounding or proclaiming doctrines openly contrary to public morals; and highly scandalous conduct not expressly falling within any other article of the code.
Blasphemy against Islam is illegal in Saudi Arabia, under punishment of death.
The South Korean constitution guarantees freedom of speech, press, petition and assembly for its nationals. However, behaviors or speeches in favor of the North Korean regime or communism can be punished by the National Security Law, though in recent years prosecutions under this law have been rare.
There is a strict election law that takes effect a few months before elections which prohibits most speech that either supports or criticizes a particular candidate or party. One can be prosecuted for political parodies and even for wearing a particular color (usually the color of a party).
The UN Human Rights Commission expressed concerns about South Korea's deterioration of online free speech.
Some activists send leaflets by balloons to North Korea. The police has intervened and stopped some of the balloon releases in fear that North Korea may retaliate violently. This has resulted in critical discussion on freedom of expression and its limits due to safety concerns. Officially, the South Korean government insists on activists' right to freedom of expression.
While the Thai constitution provides for freedom of expression, by law the government may restrict freedom of expression to preserve national security, maintain public order, preserve the rights of others, protect public morals, and prevent insults to Buddhism. The lese-majeste law makes it a crime, punishable by up to 15 years' imprisonment for each offense, to criticize, insult, or threaten the king, queen, royal heir apparent, or regent. Defamation is a criminal offense and parties that criticize the government or related businesses may be sued, setting the stage for self-censorship.
Censorship expanded considerably starting in 2003 during the Thaksin Shinawatra administration and after the 2006 military coup. Prosecutions for lese-majeste offenses increased significantly starting in 2006. Journalists are generally free to comment on government activities and institutions without fear of official reprisal, but they occasionally practice self-censorship, particularly with regard to the monarchy and national security. Broadcast media are subject to government censorship, both directly and indirectly, and self-censorship is evident. Under the Emergency Decree in the three southernmost provinces, the government may restrict print and broadcast media, online news, and social media networks there. The Computer Crime Act of 2007 allows for computer crime punishments that have committed far fewer offences, potentially giving the Government even more control over free speech. However, this amended act is currently awaiting the approval of His Majesty King Maha Vajiralongkorn Bodindradebayavarangkun
Thailand practices selective Internet filtering in the political, social, and Internet tools areas, with no evidence of filtering in the conflict/security area in 2011. Thailand is on Reporters Without Borders list of countries under surveillance in 2011 and is listed as "Not Free" in the Freedom on the Net 2011 report by Freedom House, which cites substantial political censorship and the arrest of bloggers and other online users.
United Arab EmiratesEdit
In the United Arab Emirates (UAE), it is a crime to use a computer network to "damage the national unity or social peace". The law has been used to convict people for criticising state security investigations on Twitter.
Australia does not have explicit freedom of speech in any constitutional or statutory declaration of rights, with the exception of political speech which is protected from criminal prosecution at common law per Australian Capital Television Pty Ltd v Commonwealth. There is however an implied freedom of speech that was recognised in Lange v Australian Broadcasting Corporation
In 1992 the High Court of Australia judged in the case of Australian Capital Television Pty Ltd v Commonwealth that the Australian Constitution, by providing for a system of representative and responsible government, implied the protection of political communication as an essential element of that system. This freedom of political communication is not a broad freedom of speech as in other countries, but rather a freedom whose purpose is only to protect political free speech. This freedom of political free speech is a shield against government prosecution, not a shield against private prosecution (civil law). It is also less a causal mechanism in itself, rather than simply a boundary which can be adjudged to be breached. Despite the court's ruling, however, not all political speech appears to be protected in Australia and several laws criminalise forms of speech that would be protected in republic countries such as the United States.
In 1996, Albert Langer was imprisoned for advocating that voters fill out their ballot papers in a way that was invalid. Amnesty International declared Langer to be a prisoner of conscience. The section which outlawed Langer from encouraging people to vote this way has since been repealed and the law now says only that it is an offence to print or publish material which may deceive or mislead a voter.
In 2003, CSIRO senior scientist Graeme Pearman was reprimanded and encouraged to resign after he spoke out on global warming. The Howard Government was accused of limiting the speech of Pearman and other scientists.
In 2010, journalist Andrew Bolt was sued in the Federal Court over two posts on his Herald Sun blog in 2009. Bolt was found guilty of breaching the racial discrimination act in 2011 following comments regarded to be representative of a "eugenic" approach to aboriginal identity. This prompted the federal government to propose changes to the Racial Discrimination Act but has met with stiff resistance.
In 2014 the Australian High Court issued a blanket media gag order on the reporting of a high-profile international corruption case. The gag order prevents the publishing of articles regarding bribes presented to high-ranking officials of Malaysia, Indonesia and Vietnam by senior executives of the Reserve Bank of Australia in order to secure the adoption of the Australian invented and produced polymer banknote technology.
The right to freedom of speech is not explicitly protected by common law in New Zealand, but is encompassed in a wide range of doctrines aimed at protecting free speech. An independent press, an effective judiciary, and a functioning democratic political system combine to ensure freedom of speech and of the press. In particular, freedom of expression is preserved in section 14 of the New Zealand Bill of Rights Act 1990 (BORA) which states that:
"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form."
This provision reflects the more detailed one in Article 19 of the International Covenant on Civil and Political Rights. The significance of this right and its importance to democracy has been emphasised by the New Zealand courts. It has been described as the primary right without which the rule of law cannot effectively operate. The right is not only the cornerstone of democracy; it also guarantees the self-fulfilment of its members by advancing knowledge and revealing truth. As such, the right has been given a wide interpretation. The Court of Appeal has said that section 14 is “as wide as human thought and imagination”. Freedom of expression embraces free speech, a free press, transmission and receipt of ideas and information, freedom of expression in art, and the right to silence. The right to freedom of expression also extends to the right to seek access to official records. This is provided for in the Official Information Act 1982.
Council of EuropeEdit
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The European Convention on Human Rights (ECHR), signed on 4 November 1950, guarantees a broad range of human rights to inhabitants of member countries of the Council of Europe, which includes almost all European nations. These rights include Article 10, which entitles all citizens to free expression. Echoing the language of the Universal Declaration of Human Rights this provides that:
- 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.
The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained.
The Convention also includes some other restrictions:
- 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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
For example, the Council of Europe Explanatory Report of the Additional Protocol to the Convention on Cybercrime states the "European Court of Human Rights has made it clear that the denial or revision of 'clearly established historical facts – such as the Holocaust – [...] would be removed from the protection of Article 10 by Article 17' of the ECHR" in the Lehideux and Isorni v. France judgment of 23 September 1998.
Each party to the Convention must alter its laws and policies to conform with the Convention. Some, such as Ireland or the United Kingdom, have expressly incorporated the Convention into their domestic laws. The guardian of the Convention is the European Court of Human Rights. This court has heard many cases relating to freedom of speech, including cases that have tested the professional obligations of confidentiality of journalists and lawyers, and the application of defamation law, a recent example being the so-called "McLibel case".
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Citizens of the European Union enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. Currently, all members of the European Union are signatories of the European Convention on Human Rights in addition to having various constitutional and legal rights to freedom of expression at the national level. The Charter of Fundamental Rights of the European Union has been legally binding since December 1, 2009 when the Treaty of Lisbon became fully ratified and effective. Article 11 of the Charter, in part mirroring the language of the Universal Declaration of Human Rights and the European Convention on Human Rights, provides that
- 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.
- 2. The freedom and pluralism of the media shall be respected.
The European Court of Justice takes into account both the Charter and the Convention when making its rulings. According to the Treaty of Lisbon, the European Union accedes to the European Convention as an entity in its own right, making the Convention binding not only on the governments of the member states but also on the supranational institutions of the EU.
Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter's second division - political rights. It reads as follows:
- Article 17
- (1) The freedom of expression and the right to information are guaranteed.
- (2) Everyone has the right to express their opinion in speech, in writing, in the press, in pictures, or in any other form, as well as freely to seek, receive, and disseminate ideas and information irrespective of the frontiers of the State.
- (3) Censorship is not permitted.
- (4) The freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures necessary in a democratic society for protecting the rights and freedoms of others, the security of the State, public security, public health, and morals.
- (5) State bodies and territorial self-governing bodies are obliged, in an appropriate manner, to provide information on their activities. Conditions therefore and the implementation thereof shall be provided for by law.
Specific limitations of the freedom of speech within the meaning of Article 17(4) may be found in the Criminal Code as well in other enactments. These include the prohibition of:
- unauthorized handling of personal information (Article 180 of the Criminal Code), which protects the right to privacy,
- defamation (Article 184 of the Criminal Code),
- dissemination of pornography depicting disrespect to a human, abuse of an animal, or dissemination of any pornography to children (Article 191 of the Criminal Code),
- seducing to use or propagation of use of addictive substances other than alcohol (Article 287 of the Criminal Code), which protects public health,
- denigration of a nation, race, ethnic or other group of people (Article 355 of the Criminal Code), i.e. hate speech,
- inciting of hatred towards a group of people or inciting limitation of their civil rights (Article 356 of the Criminal Code),
- spreading of scaremongering information (Article 357 of the Criminal Code), e.g. fake bomb alerts,
- public incitement of perpetration of a crime (Article 364 of the Criminal Code),
- public approval of a felony crime (Article 365 of the Criminal Code),
- public display of sympathy towards a movement oriented at curbing rights of the people (Article 404 of the Criminal Code), e.g. propagation of hate-groups,
- public denial, questioning, endorsement or vindication of genocide (Article 405 of the Criminal Code), e.g. Auschwitz lie,
- incitement of an offensive war (Article 407 of the Criminal Code).
Most of the limitations of the free speech in the Czech Republic aim at protection of rights of individuals or minority groups. Unlike in some other European countries there are no limits on speech criticizing or denigrating government, public officials or state symbols.
- § 77 Any person shall be at liberty to publish his ideas in print, in writing, and in speech, subject to his being held responsible in a court of law. Censorship and other preventive measures shall never again be introduced.
- Any person who, publicly or with the intention of disseminating ... makes a statement ... threatening (trues), insulting (forhånes), or degrading (nedværdiges) a group of persons on account of their race, national or ethnic origin or belief shall be liable to a fine or to simple detention or to imprisonment for a term not exceeding two years.
The 1991 Media Liability Act (Medieansvarsloven) creates criminal and civil mandates that mass media content and conduct must be consistent with journalism ethics and the right of reply, and also created the Press Council of Denmark (Pressenævnet) which can impose fines and imprisonment up to 4 months.
Finland has been ranked in the Press Freedom Index as the country with the best press freedom in 2002–2006, 2009–2010, and 2012–2014. According to the Constitution, everyone has freedom of expression, entailing the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. The Finnish mass-media has a own self-regulatory organ which regulates the ethics of the press.
A demonstration or other public assembly requires no permission from the police or other authorities. If a public meeting is held outdoors, the police must be notified of the event no later than six hours before the assembly is scheduled to begin, but the police have no authority to prohibit the event.
Defamation is a crime only if the target is a private person. Defamation of corporations is never a crime unless it's covered by competition regulations or similar legislation. Sentences have never been given for publishing pro-drug propaganda.
There are no restrictions regarding obscenity. It's illegal to display obscene visual material in a public place in a manner that is likely to cause public offense. In practice this means that obscene photos and videos may be shown only in places where they are expected to be seen, while there are no restrictions on obscene literature. Drawings and animations showing child pornography are legal. While bestiality is legal as such, videos and photographs showing sex with animals are banned. Motion pictures showing "brutal" violence may not be kept accessible to the public or distributed if the display of violence is not deemed necessary for informative or artistic purposes, possession of such audiovisual recordings being still legal. A Finn was sentenced in 2009 to 40 days of probation after keeping Islamic extremist execution videos on his website. Finland had a film censorship board until 2001 when the scope of the board was limited to giving age ratings to movies. After the abolition of film censorship there are no restrictions on sex shown in movies regardless of the venue of display, violent pornography being the only exception to the rule. After the abolishment of film censorship, banning movies that contain brutal violence has been extremely rare.
Disparagement of the flag of Finland is an offense that can be punished with a fine. The ban specifically includes using a flag with unauthorized addenda. This is the only law restricting disparagement of the state and its symbols and institutions.
Blasphemy and hate speech are forbidden. The blasphemy law applies to all religions. The hate speech law protects people of different sexual orientations, races, skin colors, places of birth, national or ethnic origins, religions or beliefs and disabled people. The sentence for committing these crimes could theoretically be imprisonment, but during the modern juridical history the sentence has always been a fine.
The hate speech law is relatively lax. It prohibits only threatening, insulting and defaming the aforementioned groups, while criticism and expression of opinions against these groups of people are not per se forbidden. For instance, unlike in 16 other European countries and Canada, denying the Holocaust is legal. During the years 2000–2013 there were 21 successful court cases regarding hate speech. The expressions ruled illegal include stating that some groups are trash, a group is a racial monster that needs to be destroyed, and comparing asylum seekers to animals and saying that violence against foreigners is acceptable.
A Finnish member of EU parliament Jussi Halla-aho was sentenced for both blasphemy and hate speech in 2012 by the Supreme Court after saying that "Islam is a paedophilia religion" and "it's a national and possibly even genetic special characteristic of the Somali people to rob passers-by and to be parasites living on the tax-payers' money". According to Jussi Halla-aho himself, the latter was meant to criticize the fact that saying that Finns drink a lot and then kill people due to possibly genetic reasons was held to be in accordance of the ethics of the press by the self-regulatory organ of the mass-media. Fines are income-based in Finland. Halla-aho was sentenced to 50 day-fines and had to pay €550 based on his income.
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The Declaration of the Rights of Man and of the Citizen, of constitutional value, states, in its article 11:
- The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, save [if it is necessary] to respond to the abuse of this liberty, in the cases determined by the law.
In addition, France adheres to the European Convention on Human Rights and accepts the jurisdiction of the European Court of Human Rights.
The Press Law of 1881, as amended, guarantees freedom of the press, subject to several exceptions. The Pleven Act of 1972 (after Justice Minister René Pleven) prohibits incitement to hatred, discrimination, slander and racial insults. The Gayssot Act of 1990 prohibits any racist, anti-Semite, or xenophobic activities, including Holocaust denial. The Law of 30 December 2004 prohibits hatred against people because of their gender, sexual orientation, or disability.
An addition to the Public Health Code was passed on 31 December 1970, which punishes the "positive presentation of drugs" and the "incitement to their consumption" with up to five years in prison and fines up to €76,000. Newspapers such as Libération, Charlie Hebdo and associations, political parties, and various publications criticizing the current drug laws and advocating drug reform in France have been repeatedly hit with heavy fines based on this law.
France does not implement any preliminary government censorship for written publications. Any violation of law must be processed through the courts.
The government has a commission recommending movie classifications, the decisions of which can be appealed before the courts. Another commission oversees publications for the youth. The Minister of the Interior can prohibit the sale of pornographic publications to minors, and can also prevent such publications from being publicly displayed or advertised; such decisions can be challenged before administrative courts.
The government restricts the right of broadcasting to authorized radio and television channels; the authorizations are granted by an independent administrative authority; this authority has recently removed the broadcasting authorizations of some foreign channels because of their antisemitic content.
As part of "internal security" enactments passed in 2003, it is an offense to insult the national flag or anthem, with a penalty of a maximum 9,000 euro fine or up to six months' imprisonment. Restrictions on "offending the dignity of the republic", on the other hand, include "insulting" anyone who serves the public (potentially magistrates, police, firefighters, teachers and even bus conductors). The legislation reflects the debate that raged after incidents such as the booing of the "La Marseillaise" at a France vs. Algeria football match in 2002.
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Freedom of expression is granted by Article 5 of the Basic Law for the Federal Republic of Germany, which also states that there is no censorship and that freedom of expression may be limited by law.
The press is regulated by the law of Germany as well as all 16 States of Germany. The most important and sometimes controversial regulations limiting speech and the press can be found in the Criminal code:
- Insult is punishable under Section 185. Satire and similar forms of art enjoy more freedom but have to respect human dignity (Article 1 of the Basic law).
- Malicious Gossip and Defamation (Section 186 and 187). Utterances about facts (opposed to personal judgement) are allowed if they are true and can be proven. Yet journalists are free to investigate without evidence because they are justified by Safeguarding Legitimate Interests (Section 193).
- Hate speech may be punishable if against segments of the population and in a manner that is capable of disturbing the public peace (Section 130 [Agitation of the People]), including racist agitation and antisemitism.
- Holocaust denial is punishable according to Section 130 subsection 3.
- Membership in or support of banned political parties (Section 86). Currently banned parties include the SRP and the KPD, but historically all non-Nazi parties have been banned (1933–1945).
- Dissemination of Means of Propaganda of Unconstitutional Organizations (Section 86).
- Use of Symbols of Unconstitutional Organizations (Section 86a). Items such as the Swastika or clothing of the FDJ is banned.
- Disparagement of
- the Federal President (Section 90).
- the State and its Symbols (Section 90a).
- Insult to Organs and Representatives of Foreign States (Section 103). (will no longer be valid as of 2018)
- Rewarding and Approving Crimes (Section 140).
- Casting False Suspicion (Section 164).
- Insulting of Faiths, Religious Societies and Organizations Dedicated to a Philosophy of Life if they could disturb public peace (Section 166).
- Dissemination of Pornographic Writings (Section 184).
Outdoor assemblies must be registered beforehand. Assemblies at memorial sites are banned. Individuals and groups may be banned from assembling, especially those whose fundamental rights have been revoked and banned political parties. The Love Parade decision (1 BvQ 28/01 and 1 BvQ 30/01 of 12 July 2001) determined that for an assembly to be protected it must comply with the concept of a constituent assembly, or the so-called narrow concept of assembly whereby the participants in the assembly must pursue a common purpose that is in the common interest.
The 14th article of the Greek Constitution guarantees the Freedom of Speech, of Expression and of the Press for all but with certain restrictions or exceptions; for example although it generally forbids any preemptive or after the fact censorship, it allows public prosecutors (Greek: εισαγγελείς) to order a confiscation of press (or other) publications (after having been published, not before) when the latter:
- 14.3.a: insult Christianity or any other known (Greek: γνωστή) religion,
- 14.3.b: insult the President of Greece,
- 14.3.c: disclose information related to the Greek Armed Forces or to various aspects of Greek National Security,
- have as a purpose the forceful overturning of the Greek System of Government (Greek: βίαιη ανατροπή του πολιτεύματος),
- 14.3.d: clearly (Greek: ολοφάνερα) offend public decency, in the cases defined by Greek Law (Greek: στις περιπτώσεις που ορίζει ο νόμος).
Articles VII, VIII, IX, and X of the Fundamental Law of Hungary establishes the rights of freedom of expression, speech, press, thought, conscience, religion, artistic creation, scientific research, and assembly. Some of these rights are limited by the penal code:
- Section 269 - Incitement against a community
- A person who incites to hatred before the general public against
- a) the Hungarian nation,
- b) any national, ethnic, racial group or certain groups of the population,
- shall be punishable for a felony offense with imprisonment up to three years.
This list has been updated to include: "people with disabilities, various sexual identity and sexual orientation", effective from July 2013.
It is also illegal under Section 269/C of the penal code and punishable with three years of imprisonment, to publicly "deny, question, mark as insignificant, attempt to justify the genocides carried out by the National Socialist and Communist regimes, as well as the facts of other crimes against humanity."
Freedom of speech is protected by Article 40.6.1 of the Irish constitution. However the article qualifies this right, providing that it may not be used to undermine "public order or morality or the authority of the State". Furthermore, the constitution explicitly requires that the publication of "blasphemous, seditious, or indecent matter" be a criminal offence, leading the government to pass a new blasphemy law on 8 July 2009.
The scope of the protection afforded by this Article has been interpreted restrictively by the judiciary, largely as a result of the wording of the Article, which qualifies the right before articulating it. Indeed, until an authoritative pronouncement on the issue by the Supreme Court, many believed that the protection was restricted to "convictions and opinions" and, as a result, a separate right to communicate was, by necessity, implied into Article 40.3.2. This judicial conservatism is at variance with the concept of speech as a democratic imperative. This, albeit trite, justification for free speech has underpinned the liberal, progressive interpretation of the First Amendment by the United States Supreme Court.
Under the European Convention on Human Rights Act 2003, all of the rights afforded by the European Convention serve as a guideline for the judiciary to act upon. The act is subordinate to the constitution.
- Anyone has the right to freely express their thoughts in speech, writing, or any other form of communication.
The Article also gives restrictions against those acts considered offensive by public morality, as stated in Paragraph 6:
- Publications, performances, and other exhibits offensive to public morality shall be prohibited. Measures of preventive and repressive measure against such violations shall be established by law.
Such restrictions are enforced through the Italian Penal Code which, for example, includes articles that prohibit:
- insults against the honor and prestige of the President (Art. 278),
- vilification of a persons's religion (Art. 403),
- insults against the honor and decorum of others (Art. 594), and
- defamation of another person (Art. 595).
Commercial advertising of artwork owned by the government, such as Michelangelo's David (created in the 16th Century), require an assessment of the adequacy of the image, which must respect cultural dignity.
However the law was repealed in 2016. 
Article 7 of the Dutch Grondwet in its first paragraph grants everybody the right to make public ideas and feelings by printing them without prior censorship, but not exonerating the author from his liabilities under the law. The second paragraph says that radio and television will be regulated by law but that there will be no prior censorship dealing with the content of broadcasts. The third paragraph grants a similar freedom of speech as in the first for other means of making ideas and feelings public but allowing censorship for reasons of decency when the public that has access may be younger than sixteen years of age. The fourth and last paragraph exempts commercial advertising from the freedoms granted in the first three paragraphs.
The penal code does have laws sanctioning certain types of expression. Such laws and freedom of speech were at the centre of a public debate in The Netherlands after the arrest on 16 May 2008 of cartoonist Gregorius Nekschot. On 1 February 2014, Dutch Parliament abolished the law penalizing blasphemy. Laws that punish discriminatory speech however still exist and are occasionally used to prosecute.
The Dutch Criminal Code § 137(c) criminalizes:
- … deliberately giv[ing] public expression to views insulting to a group of persons on account of their race, religion, or conviction or sexual preference.
Historically, "Statutes of Wiślica" introduced in 1347 by Casimir III of Poland codified freedom of speech in medieval Poland e.g. book publishers were not to be persecuted. The Constitution of the Republic of Poland (1997), specifically forbids, the existence of "political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of nazism, fascism, and communism, as well as those whose programmes or activities sanction racial or national hatred, the application of violence for the purpose of obtaining power or to influence the State policy, or provide for the secrecy of their own structure or membership". On 18 July 2003, about 30 human rights activists were temporarily detained by the police, allegedly for insulting Vladimir Putin, a visiting head of state. The activists were released after about 30 hours and only one was actually charged with insulting a foreign head of state.
After Salazar's dictatorship was overthrown in 1974, Article 37 of the Portuguese Constitution prohibits censorship of opinion and information.
Article 578 of the Penal Code of Spain prohibits the "Glorification or justification, by any means of public expression or dissemination, of the crimes included in Articles 571-577 of this Code or of those who participated in its execution, or performance of acts involving disrepute, contempt or humiliation of the victims of terrorist offenses or their families[...]". In January 2014, a judge of the Audiencia Nacional banned a planned march in Bilbao in support of jailed members of the Basque separatist group ETA that was organized by the group Tantaz Tanta ("Drop for drop" in Basque) on the basis that he considered the group to be the successor to Herrira, whose activities had been banned because of its suspected links to jailed ETA militants. In February 2014, a Twitter user was convicted for expressing praise for the separatist group GRAPO inactive since 90s but not yet formally self-dissolved.
Freedom of speech is regulated in three parts of the Constitution of Sweden:
- Regeringsformen, Chapter 2 (Fundamental Rights and Freedoms) protects personal freedom of expression "whether orally, pictorially, in writing, or in any other way".
- Tryckfrihetsförordningen (Freedom of the Press Act) protects the freedom of printed press, as well as the principle of free access to public records (Principle of Public Access) and the right to communicate information to the press anonymously. For a newspaper to be covered by this law, it must be registered and have a "legally responsible publisher", a Swedish legal term meaning a person who is ultimately accountable for the printed material.
- Yttrandefrihetsgrundlagen (Fundamental Law on Freedom of Expression) extends protections similar to those of Tryckfrihetsförordningen to other media, including television, radio and web sites.
In the weeks preceding the election of 2010, the privately owned TV channel TV4 refused to show an advertisement of the Sweden Democrats party, fearing that it could be prosecuted for publishing hate speech. The ad displayed women in traditional Islamistic burkhas reaching for an emergency brake labelled with the text "Pensions", and an elderly woman reaching for an emergency brake labelled with the text "Immigration", thus implying that there is a fiscal conflict between pension payments and allowing immigration. The law regulating TV and radio broadcasts had previously expressly prohibited discrimination against advertisers, granting a rejected advertiser the right to complain to a national board. However, the ban was lifted just two months before the election, thus making it possible for TV and radio broadcasters to opt out on some parties while showing the commercials of other parties. This was the first election when the Sweden Democrats gained seats in the Swedish Parliament. Some Danish ministers criticized the TV4 decision as democratically unacceptable.
Prior to the election of 2014, the General Secretary for the Swedish Red Cross and former discrimination ombudsman Peter Nobel demanded that the Nazistic Swedes Party be banned. A former police intendent, Erik Rönnegård, stated in the juridical newspaper, Dagens Juridik, that not banning the party showed incompetence of both the police and the judiciary. A large newspaper, Aftonbladet, interviewed "many lawyers" who said that the party must be banned and not banning the party is not in accordance with the United Nations convention on racism. According to the largest Swedish newspaper Dagens Nyheter the governmental decision not to ban the party has been criticized "by many". Both the Prime Minister and Minister of Justice said that freedom of speech must be respected and no parties should be banned. Holding a demonstration requires permission from the Swedish police. The police have so far granted demonstration permissions to the Swedes Party, but Swedish Left Party leader Jonas Sjöstedt has criticized the police for issuing permissions "so generously". The Swedes Party was disbanded the 10th of May 2015.
United Kingdom citizens have a negative right to freedom of expression under the common law. In 1998, the United Kingdom incorporated the European Convention, and the guarantee of freedom of expression it contains in Article 10, into its domestic law under the Human Rights Act. However, there is a broad sweep of exceptions including threatening, abusive or insulting words or behavior intending or likely to cause harassment, alarm or distress or cause a breach of the peace (which has been used to prohibit racist speech targeted at individuals), sending any article which is indecent or grossly offensive with an intent to cause distress or anxiety (which has been used to prohibit speech of a racist or anti-religious nature), incitement, incitement to racial hatred, incitement to religious hatred, incitement to terrorism including encouragement of terrorism and dissemination of terrorist publications, glorifying terrorism, collection or possession of a document or record containing information likely to be of use to a terrorist, treason including advocating for the abolition of the monarchy (which cannot be successfully prosecuted) or compassing or imagining the death of the monarch, sedition (no longer illegal, sedition and seditious libel (as common law offences) were abolished by section 73 of the Coroners and Justice Act 2009 (with effect on 12 January 2010)), obscenity, indecency including corruption of public morals and outraging public decency, defamation, prior restraint, restrictions on court reporting including names of victims and evidence and prejudicing or interfering with court proceedings, prohibition of post-trial interviews with jurors, scandalising the court by criticising or murmuring judges, time, manner, and place restrictions, harassment, privileged communications, trade secrets, classified material, copyright, patents, military conduct, and limitations on commercial speech such as advertising.
UK laws on defamation are among the strictest in the western world, imposing a high burden of proof on the defendant. However, the Education (No. 2) Act 1986 guarantees freedom of speech (within institutions of further education and institutions of higher education) as long as it is within the law (see section 43 of the Education (No. 2) Act 1986). UK defamation law may have recently experienced a considerable liberalising effect as a result of the ruling in Jameel v Wall Street Journal in October 2006. A ruling of the House of Lords—the then highest court of appeal—revived the so-called Reynolds Defence, in which journalism undertaken in the public interest shall enjoy a complete defence against a libel suit. Conditions for the defence include the right of reply for potential claimants, and that the balance of the piece was fair in view of what the writer knew at the time. The ruling removed the awkward—and hitherto binding—conditions of being able to describe the publisher as being under a duty to publish the material and the public as having a definite interest in receiving it. The original House of Lords judgment in Reynolds was unclear and held 3–2; whereas Jameel was unanimous and resounding. Lord Hoffman's words, in particular, for how the judge at first instance had applied Reynolds so narrowly, were very harsh. Hoffman LJ made seven references to Eady J, none of them favorable. He twice described his thinking as unrealistic and compared his language to "the jargon of the old Soviet Union." The Defamation Act 2013 reformed English defamation law on issues of the right to freedom of expression and the protection of reputation, and abolished the Reynolds Defence, Reynolds v Times Newspapers Ltd, also replacing the common law defences of justification and fair comment.
The Video Recordings Act 2010 requires most video recordings and some video games offered for sale in the United Kingdom to display a classification supplied by the BBFC. There are no set regulations as to what cannot be depicted in order to gain a classification as each scene is considered in the context of the wider intentions of the work; however images that could aid, encourage, or are a result of the committing of a crime, along with sustained and graphic images of torture or sexual abuse are the most likely to be refused. The objectionable material may be cut by the distributor in order to receive a classification, but with some works it may be deemed that no amount of cuts would be able to make the work suitable for classification, effectively banning that title from sale in the country. Cinemas by convention use BBFC classifications, but recordings refused a classification by the BBFC may still be shown in cinemas providing the local authority, from which a cinema must have a licence to operate, will permit them.
Article 100 of the Norwegian Constitution has granted freedom of speech since 1814 and is mostly unchanged since then. Article 142 of the penal code is a law against blasphemy, but no one has been charged since 1933, though it was upheld as late as 2004. Article 135a of the penal code is a law against hate speech, which is debated and not widely used.
Article 100 in the Constitution states:
- There shall be freedom of expression.
- No person may be held liable in law for having imparted or received information, ideas or messages unless this can be justified in relation to the grounds for freedom of expression, which are the seeking of truth, the promotion of democracy and the individual's freedom to form opinions. Such legal liability shall be prescribed by law.
- Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever. Clearly defined limitations to this right may only be imposed when particularly weighty considerations so justify in relation to the grounds for freedom of expression.
- Prior censorship and other preventive measures may not be applied unless so required in order to protect children and young persons from the harmful influence of moving pictures. Censorship of letters may only be imposed in institutions.
- Everyone has a right of access to documents of the State and municipal administration and a right to follow the proceedings of the courts and democratically elected bodies. Limitations to this right may be prescribed by law to protect the privacy of the individual or for other weighty reasons.
- It is the responsibility of the authorities of the State to create conditions that facilitate open and enlightened public discourse.
Norway has however several laws that ban the right to impart information, such as laws against alcohol and tobacco-advertisement in TV, radio, newspapers and on the internet.
Various aspects of the contemporary press freedom situation are criticized by multiple international organizations. Russian constitution provides for freedom of speech and press, however, government application of law, bureaucratic regulation, and politically motivated criminal investigations have forced the press to exercise self-censorship constraining its coverage of certain controversial issues, resulting in infringements of these rights. According to Human Rights Watch, the Russian government exerts control over civil society through selective implementation of the law, restriction and censure.
The 2002 Federal Law on Counteracting Extremist Activity codifies a definition of "extremism", prohibits advocacy of extreme political positions, imposes liability on organizations that do not disavow the "extremist" statements of their members, and allows government authorities to suspend, without court order, social and religious organizations and political parties. In 2014, Russia strengthened criminal responsibility for crimes under Art. 280 ("public calls for extremist activity"), Art. 282 ("inciting hatred or hostility, and humiliation of human dignity"), Art. 282 Part 1 ("the organization of an extremist community") and Art. 282 Part 2 ("the organization of an extremist organization") of the Criminal Code. Under the strengthened laws, those convicted of "extremist activity" face up to six years in prison.
The Swiss Constitution also guarantees Freedom of speech and Freedom of information for every citizen (Article 16). But still the country makes some controversial decisions, which both Human Right Organizations and other states criticizes. The Swiss animal rights organization "Verein gegen Tierfabriken Schweiz" took the country to the European Court of Human Rights twice for censoring a TV ad of the organization, in which the livestock farming of pigs is shown. The organization won both lawsuits, and the Swiss state was convicted to pay compensations. Another very controversial law of Switzerland is that persons who refuse to recognize the Armenian Genocide of 1915 have to face trial. The Turkish politician Doğu Perinçek was fined CHF 12,000 for denying the genocide in 2007. Switzerland was criticized by Turkish media and Turkish politicians for acting against the freedom of opinion. Perinçek's application for a revision was rejected by the court. Holocaust denial is also illegal.
- 2. Everyone has the following fundamental freedoms:
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
Section 1 of the Charter, the so-called limitations clause,[by whom?] establishes that the guarantee of freedom of expression and other rights under the Charter are not absolute and can be limited under certain situations:
- 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added)
This section is double-edged. First it implies that a limitation on freedom of speech prescribed in law can be permitted, if it can be justified as being a reasonable limit in a free and democratic society. Conversely, it implies that a restriction can be invalidated, if it cannot be shown to be a reasonable limit in a free and democratic society.
Other laws that protect freedom of speech in Canada, and did so, to a limited extent, before the Charter was enacted in 1982, include the Implied Bill of Rights, the Canadian Bill of Rights and the Saskatchewan Bill of Rights.
Supreme Court decisionsEdit
R v Keegstra, decided in 1990, is one of the major Supreme Court decision relating to freedom of expression. Section 318 of the Criminal Code makes it a criminal offence to promote genocide against members of an identifiable group, based on their colour, race, religion, ethnic origin, sexual orientation or gender expression or identity. Section 319 of the Code makes it an offence to publicly incite hatred against people based on the same list of personal characteristics from s. 318, except where the statements made are true or are made in good faith. In Keegstra, the Supreme Court by a 4-3 decision upheld the offence of publicly inciting hatred, finding that while it infringes the guarantee of freedom of expression, it is a reasonable limit and justifiable under s. 1 of the Charter.
When originally enacted, the list of protected personal grounds in s. 318 did not include sexual orientation, gender identity or gender expression. Sexual orientation was added to the list in 2004, when Parliament passed An Act to amend the Criminal Code (hate propaganda). In 2017, Parliament added gender identity and gender expression to the list of protected personal grounds in s. 318 by An Act to amend the Canadian Human Rights Act and the Criminal Code.
Two years after the Keegstra decision, the Supreme Court of Canada in 1992 decided the case of R v Zundel. The Court struck down a provision in the Criminal Code that prohibited publication of false information or news, stating that it violated section 2(b) of the Charter and could not be justified under s. 1.
Prosecutions involving expressionEdit
- In 2007, a Montreal neo-Nazi, Jean-Sebastien Presseault, pled guilty to a charge of willfully promoting hatred toward blacks and Jews on his website, contrary to s. 319 of the Criminal Code. Quebec Court Judge Martin Vauclair sentenced him to six months in jail, as opposed to a sentence to be served in the community, as the defence had hoped. The judge called Presseault's remarks "despicable, evil, and nauseating." The judge also referred to Pressault's more than twenty tattoos, including several Ku Klux Klan and Nazi symbols covering the defendant's torso, in his decision to give jail time: "The harm that he has done to his own body to leave a lasting impression of his beliefs clearly shows that he has unresolved issues and is filled with racist feelings and hate," Vauclair said. The judge also cited Presseault's criminal record for violent offences in concluding that the safety of the public would be jeopardized by allowing him to serve his sentence in the community.
- In August 2015, Robert Wells in Edmonton, Canada, displayed a sign in the back window of his car saying "FUCK HARPER" and drove it on a public highway. Stephen Harper was then the Prime Minister of Canada, and a federal general election was in progress. A police officer gave Wells a ticket for the offence of stunting under the provincial Traffic Safety Act. When the matter went to trial, Wells argued that the charge infringed his freedom of expression under the Charter. The Provincial Court judge agreed with him that the sign in itself, posted in his car window, was political expression, protected by the Charter, and that no charge could lie for simple display of the sign. However, the judge found that the way Wells was driving on a public highway to draw attention to the sign interfered with the public's use of the highway: "Wells was driving at an uncharacteristically slow speed, he is said to have passed vehicles and then slowed down in front of them and, at least on one occasion, he conducted a hazardous lane change, cutting off the Sleeman vehicle and forcing it to 'slam' on the brakes." The judge went on to say: "This latter 'method' of expression would run contrary to the values protected by the Charter, s. 2(b). Freedom of expression does not protect one’s opportunity to impede or otherwise create a hazard for traffic on a public highway. Nor does the Charter, s. 2(b) protect a motorist’s hazardous driving behaviour even when the intent behind that driving is to facilitate viewing of the expressive conduct." The judge ultimately concluded that Wells' manner of driving was "other activity that was likely to distract, startle or interfere with other users of the highway", and therefore convicted him of the offence of stunting.
Human rights complaintsEdit
Canada has had a string of high-profile court cases in which writers and publishers have been the targets of human rights complaints for their writings, in both magazines and web postings. The human rights process in Canada is civil in nature, not criminal. Most of those complaints were withdrawn or dismissed.
- In 2002 Darren Lund, a professor at the University of Calgary, filed a complaint against Reverend Stephen Boissoin and the Concerned Christian Coalition with the Alberta Human Rights Commission, alleging that Boisson's letter to the Red Deer Advocate was "likely to expose homosexuals to hatred and/or contempt." The Alberta Human Rights Panel found that Boissoin and the Coalition had infringed the hate publication provision of the Alberta Human Rights Act. The Panel ordered Boissoin and the Coalition to cease publishing disparaging remarks about gays and homosexuals; to apologize to Lund; to pay $5,000 in damages to Lund; and to pay costs, up to $2,000. The decision was overturned in 2009 when the Alberta Court of Queen's Bench found that the contents of the letter did not violate the hate publication provision of the Alberta Human Rights Act; that there was no evidence to support a finding against the Coalition; and that the remedies which had been imposed were either unlawful or unconstitutional. The court's decision was upheld by the Alberta Court of Appeal in 2012.
- In February 2006, Calgary Sufi Muslim leader Syed Soharwardy filed a human rights complaint against Western Standard publisher Ezra Levant. Levant was compelled to appear before the Alberta Human Rights Commission to discuss his intention in publishing the Muhammad cartoons. Levant posted a video of the hearing on YouTube. Levant questioned the competence of the Commission to take up the issue, and challenged it to convict him, "and sentence me to the apology", stating that he would then take "this junk into the real courts, where eight hundred years of common law" would come to his aid. In February 2008, Soharwardy dropped the complaint noting that "most Canadians see this as an issue of freedom of speech, that that principle is sacred and holy in our society."
- In May 2006, the Edmonton Council of Muslim Communities filed another human rights complaint against the Western Standard over the publishing of the cartoons. In August 2008, the Alberta Human Rights Commission dismissed the complaint, stating that, "given the full context of the republication of the cartoons, the very strong language defining hatred and contempt in the case law as well as consideration of the importance of freedom of speech and the 'admonition to balance,' the southern director concludes that there is no reasonable basis in the information for this complaint to proceed to a panel hearing."
- In 2007, the Canadian Islamic Congress filed complaints filed with the Canadian Human Rights Commission, the Ontario Human Rights Commission and the British Columbia Human Rights Tribunal, all related to an article "The Future Belongs to Islam," written by Mark Steyn, published in Maclean's magazine. The complainants alleged that the article violated their human rights by exposing them to hatred, as did the refusal by Maclean's to provide space for a rebuttal. The complainants also claimed that the article was one of twenty-two Maclean's articles, many written by Steyn, about Muslims. The Ontario Human Rights Commission, the British Columbia Human Rights Tribunal and the Canadian Human Rights Commission all dismissed the complaints in the spring of 2008.
- In Saskatchewan, human rights complaints were filed against Bill Whatcott alleging that four pamphlets he distributed in Regina and Saskatoon in 2002 promoted hatred against individuals based on their sexual orientation. The complaints were upheld by the Saskatchewan Human Rights Tribunal in 2005, which ordered Whatcott to pay damages to each of the four complainants, totalling $17,500, and also ordered him not to publish similar pamphlets. Whatcott appealed to the Saskatchewan Court of Queen's Bench, which dismissed the appeal in 2007. However, in February 2010, Whatcott succeeded in his appeal to the Saskatchewan Court of Appeal, which found that the pamphlets did not infringe the hate publication provision of the Saskatchewan Human Rights Code. Part of the judgment allowing his appeal commented that the pamphlets related to "... the manner in which children in the public school system are to be exposed to messages about different forms of sexuality and sexual identity." The judgment went to say: "This is beyond question an important matter of public policy and it is inherently controversial. It must always be open to public debate. That debate will sometimes be polemical and impolite." The Saskatchewan Human Rights Commission then appealed to the Supreme Court of Canada. In February 2013, the Court allowed the Commission's appeal in Saskatchewan Human Rights Commission v Whatcott and held that, although Bible passages, biblical beliefs and the principles derived from those beliefs can be legally and reasonably advanced in public discourse, extreme manifestations of the emotion described by the words "detestation" and "vilification" cannot be.
Books, newspapers, radio channels, television channels, movies and music are censored. Cuba is one of the world's worst offenders of free speech according to the Press Freedom Index 2008. RWB states that Cuba is "the second biggest prison in the world for journalists" after the People's Republic of China.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.— First Amendment to the United States Constitution
In the United States freedom of expression is protected by the First Amendment to the United States Constitution. There are several common law exceptions including obscenity, defamation, incitement to riot or imminent lawless action, fighting words, fraud, speech covered by copyright, and speech integral to criminal conduct; this is not to say that it is illegal, but just that either state governments or the federal government may make them illegal. There are federal criminal law statutory prohibitions covering all the common law exceptions other than defamation, of which there is civil law liability, as well as terrorist threats , making false statements in "matters within the jurisdiction" of the federal government, spreading false and misleading information relating to death or injury of members of the US Military, speech related to information decreed to be related to national security such as military and classified information, false advertising, perjury, privileged communications, trade secrets, copyright, and patents. There also exist so-called "gag orders" which prevent the recipient of search warrants and certain court orders (such as those concerning national security letters, subpoenas, pen registers and trap and trace devices, 18 U.S.C. § 2703(d) orders, suspicious activity reports) from revealing them. Most states and localities have many identical restrictions, as well as harassment, and time, place and manner restrictions. In addition, in California it is a crime to post a police officer's or public safety official's address or telephone number on the Internet for the purpose of obstruction of justice or retaliation for the exercise of official duties.
Historically, local communities and governments have sometimes sought to place limits upon speech that was deemed subversive or unpopular. There was a significant struggle for the right to free speech on the campus of the University of California at Berkeley in the 1960s. And, in the period from 1906 to 1916, the Industrial Workers of the World, a working class union, found it necessary to engage in free speech fights intended to secure the right of union organizers to speak freely to wage workers. These free speech campaigns were sometimes quite successful, although participants often put themselves at great risk.
In some public places, freedom of speech is limited to free speech zones, which can take the form of a wire fence enclosure, barricades, or an alternative venue designed to segregate speakers according to the content of their message. They are most often created at political gatherings or on college or university campuses. There is much controversy surrounding the creation of these areas—the mere existence of such zones is offensive to some people, who maintain that the First Amendment to the United States Constitution makes the entire country an unrestricted free speech zone. Civil liberties advocates claim that Free Speech Zones are used as a form of censorship and public relations management to conceal the existence of popular opposition from the mass public and elected officials.
While federal and state governments are barred from engaging in preliminary censorship of movies, nearly all American theatres refuse to exhibit movies that have not been rated by the MPAA, a private movie industry organization. This does not affect movie distribution via physical tapes or discs, cable TV, or the Internet. Since 2000, it has become quite common for movie studios to release "unrated" versions of films on DVD, containing content that had been removed from the theatrical version in order to get a satisfactory MPAA rating.
Unlike what has been called a strong international consensus that hate speech needs to be prohibited by law and that such prohibitions override, or are irrelevant to, guarantees of freedom of expression, the United States is perhaps unique among the developed world in that under law hate speech is protected.
For instance, in July 2012 a U.S. court ruled that advertisements with the slogan, "In any war between the civilized man and the savage, support the civilized man. Support Israel Defeat Jihad", are constitutionally protected speech and the government must allow their display in New York City Subway. In response on 27 September 2012 New York's Metropolitan Transportation Authority approved new guidelines for subway advertisements, prohibiting those that it "reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace". The MTA believes the new guidelines adhere to the court's ruling and will withstand any potential First Amendment challenge. Under the new policy, the authority will continue to allow viewpoint ads, but will require a disclaimer on each ad noting that it does not imply the authority's endorsement of its views.
In response to libel tourism, in 2010 the United States enacted the SPEECH Act making foreign defamation judgments unenforceable in U.S. courts unless those judgments are compliant with the First Amendment.
In Brazil, freedom of expression is a Constitutional right. Article Five of the Constitution of Brazil establishes that the "expression of thought is free, anonymity being forbidden". Furthermore, the "expression of intellectual, artistic, scientific, and communications activities is free, independently of censorship or license".
However, there are legal provisions criminalizing the desecration of religious artifacts at the time of worship, hate speech, racism, defamation, calumny, and libel. Brazilian law also forbids "unjust and grave threats".
Historically, freedom of speech has been a right in Brazilian Law since the 1824 Constitution was enacted, though it was banned by the Vargas dictatorship and severely restricted under the military dictatorship in 1964–85.
Accusations or insults without factual basis can be punished by three months to three years in prison according to Article 494 of Ecuador's penal code. It is usually interpreted in media as criminal defamation and/or libel.
In 2012 the Supreme Court of Ecuador upheld a three-year prison sentence and a $42 million fine for criminal libel against an editor and the directors of the newspaper El Universo for "aggravated defamation of a public official". In 2013 Assemblyman Cléver Jiménez was sentenced to a year in prison for criminal libel.
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Brahm said the postings were not meant to be taken seriously and were at a Web site, www.4chan.org, that is 'outrageous.' … Welle said Brahm bragged in a posting, 'This is the most epic win ever.' … The charge is part of the Patriot Act.
- U.S. v. Jake Brahm, Indictment, 18 U.S.C. §§ 1038(a)(1) and 2
- 18 U.S.C. § 1001
- Stop Terrorist and Military Hoaxes Act of 2004, Subtitle H of Title VI of the Intelligence Reform and Terrorism Prevention Act; codified at 18 U.S.C. § 1038 et seq.
- "Violators of Military Hoaxes Act could receive fines, prison time Archived July 17, 2011, at the Wayback Machine.", United States Army Criminal Investigation Command, 22 February 2007. "Persons making false or misleading statements … could be … imprisoned … According to the Stop Terrorist and Military Hoaxes Act of 2004 …"
- Protection of National Security Information (PDF), Congressional Research Service, 30 June 2006
- Miller, Roger LeRoy; Cross, Frank B.; Jentz, Gaylord A. (2008). Essentials of the Legal Environment (2 ed.). Cengage Learning. p. 245. ISBN 978-0-324-64123-3.
- DVD Copy Control Association, Inc. v. Bunner, 116 Cal. App. 4th 241
- California Electronic Communications Privacy Act § 1, codified at California Penal Code § 1546.2. "(b)(1) When a warrant is sought or electronic information is obtained in an emergency under Section 1546.1, the government entity may submit a request supported by a sworn affidavit for an order delaying notification and prohibiting any party providing information from notifying any other party that information has been sought. The court shall issue the order […]"
- 18 U.S.C. § 2709
- "ACLU Roadmap of Justice Department Inspector General's Review of the FBI's Use of National Security Letters". American Civil Liberties Union. 19 March 2007. Retrieved 10 September 2011.
- Kravets, David (20 October 2009). "Judge Refuses to Lift 5-Year-Old Patriot Act Gag Order". Wired News. Retrieved 10 September 2011.
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- 18 U.S.C. § 3123(d)(2)
- In Re: Sealing and Non-disclosure of Pen/Trap/2703(d) Orders of May 30, 2008, p. 5
- 18 U.S.C. § 2705(b)
- In Re: Application of the United States of America for an Order Pursuant to 18 U.S.C. Section 2703(d) of January 25, 2013, p. 4, from the Wikileaks-related Twitter subpoenas
- 31 U.S.C. § 5318(g)(2)
- California Government Code § 6254.21(c)
- California Penal Code § 146e
- Secret Service Ordered Local Police to Restrict Anti-Bush Protesters at Rallies, ACLU Charges in Unprecedented Nationwide Lawsuit. ACLU press release, 23 September 2003
- Liptak, Adam (11 June 2008). "Hate speech or free speech? What much of West bans is protected in U.S". The New York Times.
- Schauer, Frederick (February 2005). "The Exceptional First Amendment". Working Paper Series from Harvard University, John F. Kennedy School of Government. doi:10.2139/ssrn.668543.
On this cluster of interrelated topics, there appears to be a strong international consensus that the principles of freedom of expression are either overridden or irrelevant when what is being expressed is racial, ethnic, or religious hatred. … In contrast to this international consensus that various forms of hate speech need to be prohibited by law and that such prohibition creates no or few free speech issues, the United States remains steadfastly committed to the opposite view. … In much of the developed world, one uses racial epithets at one's legal peril, one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk and one urges discrimination against religious minorities under threat of fine or imprisonment, but in the United States, all such speech remains constitutionally protected.
- "Pro-Israel 'Defeat Jihad' ads to hit New York subway", BBC News, 20 September 2012
- "M.T.A. Amends Rules After Pro-Israel Ads Draw Controversy", Matt Flegenheimer, New York Times, 27 September 2012
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- Milton, John. Areopagitica: A speech of Mr John Milton for the liberty of unlicensed printing to the Parliament of England
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- International PEN
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