Freedom of Expression

ECHR, Article 10:

  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 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 disclose of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Constitution of the United States, First Amendment:

‘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 peacefully to assemble, and to petition the government for a redress of grievances.’

It is useful to compare the above two provisions.

 

  • Debate regarding the US Constitution centres around whether the relevant expression is speech, and therefore falls within the scope of protection; in contrast, ECHR’s use of ‘expression’ makes it relatively easy to fall within the scope of the Article, the issue being 10(2) as to whether any restrictions is justified – Dentist Calgary
  • This is reflected in the US’s narrower approach being matched by higher level of protection, with no explicit limits on its scope.