constitutional freedom

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.

International law

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 and the Netherlands insisted on reservations to Article 19 insofar as it might be held to affect their systems of regulating and licensing broadcasting.

Africa

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.

Australia

Australia does not have a bill or declaration of rights; however, 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 the government - and the government only - it is not a shield against private interests. 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 other democratic 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 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. At present, therefore, Langer's actions would not seem to be considered illegal.

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.

Asia

Several Asian countries provide formal legal guarantees of freedom of speech to their citizens. These are not, however, implemented in practice in most places. Countries such as Vietnam, Myanmar, Singapore, North Korea and Central Asian Republics like Turkmenistan brutally repress freedom of speech. Freedom of speech has been greatly improved in the People's Republic of China in recent years, but the level of free expression is still far from that of Western nations.

People's Republic of China (mainland)

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.

Hong Kong

Under Hong Kong Basic Law,

Hong Kong residents shall have freedom of speech.
The freedom of the person of Hong Kong residents shall be inviolable.
The freedom and privacy of communication of Hong Kong residents shall be protected by law.

India

The Indian constitution guarantees freedom of speech to every citizen and 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. In India, citizens are free to criticize politics, politicians, bureaucracy and policies. The freedoms are comparable to those in the United States and Western European democracies. 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 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.

Malaysia

In Malaysia, "God" and "Prophet Muhammad" are used by politicians to answer to the peoples and the media. On May 2008, the Prime Minister of Malaysia Datuk Seri Abdullah Ahmad Badawi put forward a headline "Media should practise 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 Prophet 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."

South Korea

The South Korean constitution guarantees freedom of speech, press, petition and assembly. However, behaviors or speeches in favor of North Korean Regime or communism can be punished by the National Security Act (South Korea), which has become very rare recently.

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.

Europe

European Convention on Human Rights

The European Convention on Human Rights, 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.

It 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.

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".

European Union

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

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.

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.

Denmark

Freedom of speech in Denmark is granted by Grundloven:

§ 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.

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 Netherlands

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 liabilties 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 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.

France

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.

Restrictions

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.

Germany

Freedom of expression is granted by Article 5 of the Basic Law for the Federal Republic of Germany:

Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.
Art and scholarship, research, and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

The most important and sometimes controversial regulations limiting freedom of speech and freedom of 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.
Dissemination of Means of Propaganda of Unconstitutional Organizations (Section 86).
Use of Symbols of Unconstitutional Organizations (Section 86a) as the Swastika.
Disparagement of

the Federal President (Section 90).
the State and its Symbols (Section 90a).

Insult to Organs and Representatives of Foreign States (Section 103).
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).

Republic of Ireland

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.

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.

Poland

"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. As of 2005, people are sometimes convicted and/or detained for about one day for insults to religious feeling (of the Roman Catholic Church) or to heads of state who are not yet, but soon will be, on Polish territory. On July 18 2003, During January 26-January 27 2005, 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.

Sweden

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 (offentlighetsprincipen) 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 “responsible editor”.
Yttrandefrihetsgrundlagen (Fundamental Law on Freedom of Expression) extends protections similar to those of Tryckfrihetsförordningen to other media, including television, radio and web sites.

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.

Turkey

Article 26 of the Constitution of Turkey guarantees the right to "Freedom of Expression and Dissemination of Thought". Moreover, the Republic of Turkey is a signatory of the European Convention on Human Rights and submits to the judgments of the European Court of Human Rights. The constitutional freedom of expression may be limited by provisions in other laws, of which Article 301 of the Turkish Penal Code, which outlaws insulting Turkishness, indicating that "Expressions of thought intended to criticize shall not constitute a crime".

United Kingdom

In 1998, the United Kingdom incorporated European Convention, and the guarantee of freedom of expression it contains in Article 10, into its domestic law under the Human Rights Act. UK law imposes a number of limitations on freedom of speech not found in some other jurisdictions. For example, its laws recognise the crimes of incitement to racial hatred and incitement to religious hatred. UK laws on defamation are also considered among the strictest in the Western world, imposing a high burden of proof on the defendant.

Jameel v Wall Street Journal

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 highest UK court - the ruling revived the so-called Reynolds defense, in which journalism undertaken in the public interest shall enjoy a complete defense against a libel suit. Conditions for the defense 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.”

Illegal literature

On December 6 2007, Samina Malik was convicted of possessing literature deemed illegal by the Terrorism Act 2000. The illegal literature included poems she had written. She received a nine-month suspended jail sentence. This case has been condemned by Hizb ut-Tahrir

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.

Switzerland

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 Right organization "Verein gegen Tierfabriken Schweiz" took the country to the European Court of Human Rights twice for censoring a TV-Advertisement 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 genocide like the Armenian Massacre of 1915 have to face trial. The Turkish politician Doğu Perinçek was fined CHF 12,000 for denying the existence of 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..

North America

Canada

The constitutional provision that guarantees Freedom of expression in Canada is section 2(b) of the Canadian Charter of Rights and Freedoms.

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

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:

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. 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.

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 and the Canadian Bill of Rights.

United States

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.