Dirk Voorhoof

The abuse clause and freedom of expression in the European Human Rights Convention: an added value for democracy and human rights protection?

With regard to certain types of hate speech, the European Court of Human Rights and the former Commission have developed a tradition of applying Article 17 ECHR; the so-called abuse clause. This application leads to categorical exclusion from protection of the right to freedom of expression (Article 10), an approach that contrasts sharply with the Courts general attitude toward accepting and even creating a broad scope of protection under this right. It also contrasts with the Courts usual examination of interferences with freedom of expression in the light of the case as a whole, all its factual and legally relevant elements being taken into consideration. The aim of this article is to show that the abuse clauses application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. The application of Article 17 is also unnecessary, as it in no way generates an added value for democracy or for human rights protection. We therefore strongly encourage the European Court to consider all forms of hate speech from the perspective of Article 10, without affording a decisive impact, directly nor indirectly, from Article 17 of the Convention.

Freedom of Expression and Information in a Democratic Society The Added but Fragile Value of the European Convention on Human Rights

The right to freedom of expression and information is guaranteed by Article (10) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in all 47 member states of the Council of Europe. The jurisprudence of the European Court of Human Rights (ECrtHR) applying Article (10) is to be considered an authoritative international standard regarding the protection of this human right, including the right to express, impart and receive opinions and information without interference by public authorities. The Court’s case law has manifestly helped to create an added value for the effective protection of freedom of expression, journalistic freedom, freedom of the media, the right to receive information and public debate in the Convention’s member states. However, some recent restrictive trends in the Court’s approach have raised serious concerns regarding the (future) level of protection of freedom of speech and press freedom in Europe. This article focuses on the most important characteristics of the right to freedom of expression and information under the European human rights system and discusses some challenges for the future.

Freedom of expression and the right to information: Implications for copyright

This chapter explores the actual legal framework of the right to freedom of expression and information, as guaranteed under Article 10 ECHR, with references also to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), in relation to copyright law. The most important and specifically relevant characteristics of the right to freedom of expression and information are highlighted when coming into conflict with (the enforcement of) copyright law. Next the (recent) case law of the ECtHR regarding these conflicting rights is presented and briefly analysed, with reference also to relevant recent case law by the European Court of Justice (CJEU). By way of conclusion seven suggestions are formulated in order to bring the protection and enforcement of copyright law in better accordance with the requirements of the respect for the right to freedom of expression and information in a democratic society.

Whistleblowing for sustainable democracy

Transparency, to which whistleblowers can contribute, is crucial for effective and accountable institutions at all levels and can help to reduce corruption, bribery and unlawful or unethical activities. Democracy and justice, access to information and protection of fundamental freedoms are all integrated in the UN Sustainable Development Goals (UN SDG), especially in UN SDG 16 on Peace, justice and strong institutions. This comment argues for a more robust and effective protection of whistleblowers both from the perspective of UN SDG 16 and the jurisprudence of the European Court of Human Rights on the right to freedom of expression for whistlebowers..