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 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. South Africa is probably the most liberal in granting freedom of speech with the exception of the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Recently, the South African Constitutional Court set an international precedent 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.
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.
The Australian government is currently trying to pass amendments to several laws, to give counter-terrorism agencies more power. At least one of the amendments has come under a large amount of public scrutiny, the Amendments to the Crimes Act 1914, and the Criminal Code 1995 to change the way the crime of sedition is handled. Many have decried this as an attack on the freedom of speech of Australians and many claim it is entirely unnecessary. Media Watch has been running a series on the amendments on ABC television.
Article 35 of the Constitution of the People's Republic of China claims that:
Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
Nonetheless strict censorship is widespread in mainland China. There is heavy government involvement in the media, with many of the largest media organisations being run by the Communist government. References to democracy, the free Tibet movement, Taiwan as an independent country, certain religious organizations and anything questioning the legitimacy of the Communist Party of China are banned from use in publications 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. While the television channels in Hong Kong, where more freedom of speech is allowed, are accessible in mainland China through cable television services, comments that the Communist Party feel uncomfortable with are cut out, and replaced with TV commercials. Very few Western films are given permission to play in Chinese theatres, although widespread unlicensed copying of these films makes them widely available.
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 effect:
- *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
However, Indian citizens cannot criticize supreme court judgments (although they are given the right to challenge the courts decision under legal process) and is punishable by three month imprisonment in jail. Novelist, Arundhati Roy, was arrested and charged 2000 Rupees for criticizing court's judgment in the Sardar Sarover case. She was released after she paid the fine.
There is a strict election law that takes effect a few months before elections that prohibit most speech that support, criticizes a particular candidate or party. One can get prosecuted for political parodies and even wearing a particular color (usually of a party) can be prosecuted.
It also includes some other restrictions:
Each party to the convention must alter its laws and policies to conform with the Convention, some, such as the United Kingdom and the Republic of Ireland, have expressly incorporated the Convention into their domestic laws. The guardian of the Covention 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".
Currently, all members of the European Union are signatories of the European Convention on Human Rights as well as having varying constitutional and legal protections for freedom of expression at the national level. The Charter of Fundamental Rights of the European Union guarantees freedom of expression but currently merely has the status of a "solemn proclamation" and is not binding in law. Its Article 11, in part mirroring the language of the Universal Declaration of Human Rights and the European Convention, provides that
While neither the Convention nor the Charter of Fundamental Rights is technically legally binding, the European Court of Justice takes them into account when making its rulings. Should the Treaty Establishing a Constitution For Europe ever become law the Charter of Fundamental Rights will acquire legal force. The proposed constitution also permits the European Union to accede to the European Convention as an entity in its own right. This right is important because, while currently the Convention is binding on the governments of the member states, it is not binding on the supranational institutions of the Union itself.
Traditionally the left-wing parties support freedom of speech but with respect for minorities and avoiding blasphemy. Right-wing parties alternately support full freedom of speech for the citizens almost regardless of motive and subject (racism in public is illegal so it has not been included in the statement). In the main, the citizens of Denmark enjoy strong protections of speech, and the belief is strong across the nation that speech protections are inviolable. In the wake of the Jyllands-Posten Muhammad cartoons controversy, however, there has been considerable debate over the extent of free-speech protections in Denmark, as concerns speech and imagery that could be seen as blasphemous or insulting.
The penal code has laws however sanctioning certain types of expression. Such laws and freedom of speech are at the centre of a public debate in The Netherlands after the arrest on May 16, 2008 of cartoonist Gregorius Nekschot. Jurisprudence from the 60's prohibits prosecution of blasphemy. Parliament has recently expressed its wish to abolish the law penalizing blasphemy. The current Christian Democrat Justice Minister would however prefer to renew it and expand it to include non-religious philosophies of life, thus making it possible to anticipate and prevent international outcry similar to the Jyllands-Posten Muhammad cartoons controversy. Laws that punish discriminatory speech also exist and are being used against Gregorius Nekschot. Laws on lèse majesté exist and are occasionally used to prosecute.
The Declaration of the Rights of Man and of the Citizen, of constitutional value, states, in its article 11:
In addition, France adheres to the European Convention on Human Rights and accepts the jurisdiction of the European Court of Human Rights.
French law prohibits public speech or writings that incite to racial or religious hatred, as well as those that deny the Holocaust.
In December 2004, a controversial addition was made to the law, criminalizing the prohibition to hatred or violence against people because of their sexual orientation.
An addition to the Public Health Code was passed on the 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.
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 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.
Freedom of expression is granted by Article 5 of the Basic Law for the Federal Republic of Germany:
The most important and sometimes controversial regulations limiting freedom of speech and freedom of the press can be found in the Criminal code:
The scope of the protection afforded by this Article has, to a large degree as a result of the wording of the Article, which qualifies the right before articulating it, been interpreted restrictively by the judiciary. 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 form an integral part of the Republic of Ireland's laws. The act is, however, subordinate to the constitution.
Certain restrictions on freedom of speech exist, notably regarding hate speech against any group based on ethnicity, race and creed, and since 2002 also against homosexuals. Some notable recent cases are Radio Islam and Åke Green.
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.”
Abdul Patel was found guilty of possessing a document likely to be useful for terrorism (a book on explosives).
Mohammed Siddique was sentenced to eight years of prison for possessing and distributing through his website freely available videos inciting martyrdom.
Due to section 1 of the Charter, the so-called limitation clause, Canada's freedom of expression is not absolute and can be limited under certain situations. Section 1 of the Charter states:
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. The former case has been used to uphold limits on legislation which are used to prevent hate speech and obscenity.
In the landmark Supreme Court of Canada case R. v. Zundel (1992), the court struck down a provision in the Criminal Code of Canada that prohibited publication of false information or news, stating that it violated section 2(b) of the Charter.
Under section 318 of the Criminal Code of Canada, it is illegal to promote genocide. Under section 319, it is illegal to publicly incite hatred against people based on their colour, race, religion, ethnic origin, and sexual orientation, except where the statements made are true or are made in good faith. The prohibition against inciting hatred based on sexual orientation was added to the section in 2004 with the passage of Bill C-250.
In the United States freedom of expression is protected by the First Amendment to the United States Constitution. There are several exceptions to this general rule, including copyright protection, the Miller test for obscenity and greater regulation of so-called commercial speech, such as advertising. The Miller test in particular rarely comes into effect.
Neither the federal nor state governments engage in preliminary censorship of movies. However, the Motion Picture Association of America has a rating system, and movies not rated by the MPAA cannot expect anything but a very limited release in theatres, making the system almost compulsory. Since the organization is private, no recourse to the courts is available. The rules implemented by the MPAA are more restrictive than the ones implemented by most First World countries. However, unlike comparable public or private institutions in other countries, the MPAA does not have the power to limit the retail sale of movies in tape or disc form based on their content, nor does it affect movie distribution in public (i.e., government-funded) libraries. Since 2000, it has become quite common for movie studios to release "unrated" DVD versions of films with MPAA-censored content put back in.
Within the U.S., the freedom of speech also varies widely from one state to the next. Of all states, the state of California permits its citizens the broadest possible range of free speech under the state constitution (whose declaration of rights includes a strong affirmative right to free speech in addition to a negative right paralleling the federal prohibition on laws that abridge the freedom of speech). More specifically, through the Pruneyard case ruling, California residents may peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public.
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.