1

VIEWPOINT OF OVERSEAS NATIONS ON FREEDOM OF EXPRESSION

Freedom of Speech and expression is guaranteed by several Constitutions in the World.

1. Europe: Article 10 of ECHR, European Convention on Human Rights.

2. United States: 1st and 14th Amendment
3. USSR: Article 15 & 51

International Conventions

1. Articles 13, 20, 23, 29 UDHR, 1948.

2. Article 22 ICCPR, 1966.
3. Article 11 ECHR, 1950.
4. Article 6, 12 ICESCR, 1966.
5. Article 19 of UDHR, 1948.

Execution of freedom of expression and speech is important to express the mind,

perspectives, ideas, philosophy. The conversation continues society together and cohabitate. For
a wholesome increase of civilized world, the unfastened glide of records and thoughts is
important. Each man or woman is a medium of expression. A character interacts thru the media
to reach different people and institutions. The right to freedom of speech though belongs to each
man or woman, group and business enterprise it turns into imperatively essential inside the
media global. Media international serves because the satisfactory raconteur of information and
the excellent device of expression. Exercise of right of freedom of expression is the specialist
duty and man or woman work of media, whether or not its miles print or electronic media. The
media gets as a mass communicator. It has to revel in this freedom for selling public correct and
for informing the people in fashionable as to the situation in each sphere of life and activity.1

Sodhganga Article, Chapter 2 ,cited by Written by Dr. Madhabhusi Sridhar in her book, The Law of Expression,
1

An Analytical Commentary on Law for Media 22 (Asia Law House, Hyderabad, 2007).
2

A. EUROPE

1. ECHR

The ECHR is the most important form of expression of the member states of the European
Union, the values of democracy, to the respect of the fundamental rights and freedoms of the
individuals living in those societies.2 Freedom of speech & expression are both essential parts of
a democracy. Freedom of expression can be defined as the emancipation to express opinions,
apart from of their truth and hollowness, and transparency as the enforceable right of access to
known facts.3
The ECHR was signed on 4th Nov. 1950 at Rome. The purpose of ECHR is preliminary and
primary responsibility for safeguard of the rights set forth in it falls with the member States. The
Court is there to regulate states action, exercising the power of assessment. The domestic
margin of approval thus goes hand in hand with the European administration.

Article 10 of the ECHR dealt with freedom of speech and expression it is ordered in two
paragraphs, the 1st paragraph defines the freedoms protected by it. While 2nd paragraph stipulates
the conditions in which a state may lawfully hinder with the exercise of freedom of expression.4

Article 10,5

1. Everyone has the right to freedom of expression. This right includes the freedom to hold
opinions and to receive and impart information and ideas without interference by a public
authority and regardless of frontiers. This article shall not prevent States from requiring the
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

2
Introduction to European Convention on Human Rights - Collected texts, Council of Europe, 1994.
3
Cited from Article FREEDOM OF EXPRESSION AND TRANSPARENCY:two sides of one coin by Sara
Hugelier
4
Freedom of Expression, A guide to the implementation of Article 10 of the European Convention on Human
Rights, by Monica Macovie, Human Rights Handbook No. 2.
5
ECHR,1950.
3

the protection of the reputation of the rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and impartiality of the
judiciary.

The Court has explained freedom of expression as one of the basic conditions for the progress
of democratic societies and for the development of each individual6. The Court also held in the
Ekin Association case that the rights familiar by Article 10 of the Convention are valid
regardless of frontiers.

The Convention further inaugurate the European Court of Human Rights (ECHR).Person whose
rights hampered can take a case before the Court. Judgements violations are binding on the
authority concerned and they are obliged to execute the decision. The association of Ministers of
the Council of Europe regulates the execution of decision, particularly the payment of the
amounts by the Court to the plaintiff as compensation for the loss they have faced.

Technological development of technology provide new pathway for individuals to spread

information to a large number of people and have had an important effect on the active
participation of citizens in rational decision making process. These developments have also
brought new hurdles. All human rights that are existing offline must also be protected online, in
the field of internet and certification of films in particular the right to freedom of opinion and
expression and the right to privacy, which also includes the protection of personal data.

The freedom of speech and expression mentioned under Art 10 of ECHR is not unlimited it is
limited to certain restriction. The European authority regularly regulates Internet sites that carry
content which consider offensive and obscene. This should follow one of the purposes set out in
article 19.3 ICCPR which talks about the protection of the rights and reputations of other people;
to protect national security, public order or public health or morals (principle of legitimacy)7

6
Handyside v. the United Kingdom, judgment of 7 December 1976, Series A No. 24 : 49.
7
EU Human Rights Guidelines on Freedom of Expression Online and Offline, FOREIGAFFAIRS Council meeting
Brussels, 12 May 2014
4

Hate speech

This term is generally refereeing to expression which is obnoxious, rude, daunting or niggling or
which leads to incitement of violence, hatred and discrimination within the individuals and
groups recognized by a specific set of characteristics. In international law, States are only
requisite to prohibit the harshest forms of hate speech, such as the encouragement of national,
racial or religious abhorrence that constitutes agitation to discrimination, antagonism or violence
provided under Article 20.2 of ICCPR and Article 4 of CERD. Hate speech legislation should
not be ill-treated by governments to dishearten citizens from engaging in lawful democratic
debate on matters of general significance. The propagation of hate speech by the mode of
internet is prohibited in international regime. The European Commission on 1st June 2016 had
announce sweeping plans to combat illegal online hate speech the European Commission
provides a code of conduct that will regulate that the online mode such as internet cannot spread
the hatred speech which is against the interest of the society. On receiving a valid removal
notification, the IT companies should have to remove or disable right of entry to the content in
less than twenty four hours.8

The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography prohibits the banning of any content abusive of
children through the medium of internet.

The European Safer internet action Plan will maintain the internet security. It divides the banned
internet content into two categories: Harmful and Illegal internet content. Illegal content must be
dealing with at source by the police and the judicial authorities, whose activities are covered by
national legislation and judicial cooperation agreements while harmful content is both that which
is authorized but has restricted circulation (e.g. for adults only) and content which could be
offensive to some users, even if publication is not restricted because of freedom of speech.9

Recently the European council adopted a proposal in the form of CM/Rec(2016)1 by the
Ministers of the member States on protection and promotion of the right to freedom of

8
http://www.spiked-online.com/newsite/article/the-eus-relentless-attack-on-free-speech Accessed on 10/31/16
9
Action plan for a Safer Internet 1999-2004 2011-2016 , http://eur-lex.europa.eu , Accessed on 10/31/16
5

expression and the right to personal life which stated that the internet service providers are
answerable for the content provided by them on their website.10

B. NEW ZEALAND11

Online Classification

In New Zealand (FVPCA Act) were come into existence in 1993 which regulated the censorship
of internet material. This act positively applies to material which is downloaded through the
internet.

The NEWZEALANDs Department of Internal Affairs (DIA) stated that the objectionable
publication is voluntarily banned by the FVPCA ACT, 1993.

The DIA web site never referred to any regulation prohibitions or restrictions relative to the
content on the Internet that would be classified as R18 or equivalent to unsuitable for minors
under Newzealand laws. In 2000, a Newzealand Parliament Select Committee originated an
examination into the operation of the FVPCA, 1993.

Offline Classification:

Sexually overt films (classified A in India) which are Non-violent and sexually obscene are
classified as R18 in Newzealand. Such videos and films are restricted for sale without
certification and licensed adult shops, and mail order sales are illegal.

The Newzealand test for restriction material is based on harm: whether the material is likely to
be injurious to the public good.

The New Zealand Bill of Rights Act is to be looked while classifies the films, even if the
material clearly fits into the criteria set out in Section 3(2) of the NEWZEALAND Classification
Act.

10
Adopted by the Committee of Ministers on 13 January 2016, at the 1244th meeting of the Ministers Deputies
11
Electronic Frontiers Australia , Accessed on 10/31/16
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C. United Kingdom12

The UK law has taken little notice of freedom of speech and expression. There is no
radical laws which look after this right, so this right comes from the various international
conventions and other human right acts. Basically courts interpret these conventions with respect
to the rights of the citizen.

In UK basically this right flows from the:

1. Human Right Act 1998,and

2. Article 10 of ECHR.

As per Article 10(2) the limits shall be imposed must meet the objective of the Article.

Online: Internet

The UK does not have the laws particularly for the Internet and appears to have no intention for
further enactment. The White Papers research suggests that people needs regulation which helps
them to control the content of the internet, rather than third party regulation and that
government and industry corporation provides the best move toward in this regard.

A NGO named the UK Internet Watch Foundation (IWF) was recognized by Internet Service
Provider associations to put into practice proposals to deal with illegal material on the Internet,
with particular reference to child pornography. The IWF operates a hotline to enable members
of the public to report child pornography or other illegal material on the Internet.

Few other restrictions are imposed on online mode of expression by ancillary laws such as,
Racial and Religious Hatred Act 2006 and Terrorism Act 2006.

Offline: Films

British Board of Film Classification (BBFC) has a role to classify the films in United Kingdom,
an self-governing, NGO. The BBFCs classification is not binding on the party. The BBFCs
decision can be overruled by the local authority decisions for films showed in their jurisdiction.
If a film or video work is obscene within the meaning of the Obscene Publications Act (OPA), or

12
Supra Note 12.
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any prohibition of the criminal law then the film is refused by the BBFC for classification
certificate.

The European Convention on Human Rights (ECHR) provisions are always considered by the
BBFCs before giving any decision, which is incorporated in the UK Human Rights Act 1998 by
Law. The freedom of speech and expression mentioned under Article 10 of ECHR is not
unlimited it is limited to certain restriction. The United Kingdom authority regularly regulates
Internet sites that carry content which consider offensive and obscene.

The Explicit films and other films which are Non-violent and sexually obscene are classified as
R18. Such videos and films are restricted for sale without certification and licensed adult
shops, and mail order sales are illegal.

D. U.S.A.13

Online: Internet

In US United States has ratified the UDHR and ICCPR which talks about the freedom
of speech and expression thus on basis of these international convention the freedom of speech
and expression is regulated in US. The US also safeguards this right through the 1st amendment
of the United States constitution which states that the:

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.14

But this right is not absolute the content neutral restrictions shall be imposed on this right.
The content based restriction shall not be imposed as to provide free exercise of expression. In
USA there are two Federal laws which regulate the censor offensive online content in the
internet. The first one was smack down by the USA SC on ground of 1st amendment.15 The

13
Supra Note 12.
14
1st Amendment to the US constitution 1951;
15
Kathleen Ann Ruane , Legislative Attorney, September 8, 2014, Freedom of Speech and Press: Exceptions to the
First Amendment.
8

second one (COPA), that only covers interactions that are made for profitable purposes on the
WWW, is also subjected to the injunction of the court which prevents its enforcement.

Till now four US states, New York, New Mexico, Virginia and Michigan come up with
Internet censorship legislation to regulate the content of internet which is harmful to minors.
These laws are treated as unconstitutional as per the constitution of the USA. Like as India
Section 66A of IT act is treated as unconstitutional.

Obscenity might be restricted under the 1st amendment but its a debatable topic that what
constitutes the obscene and what not and how to regulate this. Hate speech through internet is not
restricted on banned in US as to control this best method is toleration, truthfulness and
intelligence on this point.

Offline: Films

In United States of America, films and other videos are not essential to be categorised prior to
the display by the legislature, sale or hire. But nongovernmental established ranking schemes are
predominantly used in grading the films.

CASE STUDY

1. Ahmet Yldrm v. Turkey16 (European Court of Human Right)

Ratio: It was held that Restriction on the Internet access with no strict legal principles which
regulate the procedure of ban and affording the guarantee for judicial review of the decision to
prevent the abuses which amounts to a violation of freedom of expression

Facts:

16
ECHR 458 (2012),18.12.2012, (application no. 3111/10)
9

1. Ahmet Yldrm is Applicant who is a Turkish national who was born in 1983 and lives at
Istanbul and owner of a website which is hosted by Google Sites service, on which he
publishes his educational work and opinions on various other subject matter.
2. Denizli Criminal Court of first class has ordered for the blocking of all the Internet site
owner of whose had been accused for the insulting the remembrance of Atatrk, On 23
June 2009. The order was issued as a preventive measure in the context of criminal
proceedings against the sites owner.
3. This blocking order had been submitted to the Telecommunications Directorate (TB) for
the execution of the same. After which , the TB has asked to the court for the extension
of the scope of the order by blocking access to Google Sites, which hosted not only the
site in question but also the applicants site.
4. The TB stated that this was the only technical means of blocking the offending site, as
its owner lived abroad. The TB blocked all access to Google Sites and Mr Yldrm was
thus unable to access his own site. All his subsequent attempts to remedy the situation
were unsuccessful because of the blocking order issued by the court. In a letter sent to the
Court in April 2012 Mr Yldrm stated that he was still unable to access his own website
even though, as far as he was aware, the criminal proceedings against the owner of the
other site had been discontinued because it was impossible to determine the identity and
address of the accused, which lived abroad.

Issue:

On the basis of Article 10 of ECHR Mr Yldrm made the complaint that he was unable
to access his own Internet site because of this order in regard of criminal proceedings without
any connection to him and his site. He has submitted to the court that the measure taken by the
court has infringed right to freedom to receive information which comes under the freedom of
speech and expression. His application was lodged on ECtHR on 12 January 2010.

Decision of the Court

Article 10 of ECHR provides for the freedom of expression to each one and applied not
only to the content but also to all means of useful for spreading it. The Court in this case
experienced that the jamming of access to the applicants website had resulted from an order by
10

the Denizli Criminal Court with respect to the criminal proceedings against the owner of another
site who was charged for insulting the memory of Atatrk. The courtroom had to begin with
ordered the blocking of that web page alone. however, the executive authority liable for
implementing the order (the TIB) had sought an order from the court docket for the blocking of
all access to Google web sites, which hosted now not best the offending web site but also the
applicants web page. the court docket had granted the request, locating that the most effective
manner of blocking off the website in query turned into to bar get right of entry to Google sites
as an entire. Although neither Google websites nor Mr Yildirims personal website have been
worried by using the abovementioned court cases, the TIB made it technically not possible to
access any of these websites, if you want to put in force the measure ordered through the Denizli
criminal court. The courtroom time-honored that this become no longer a blanket ban but instead
a restrict on net get right of entry to. However, the restricted impact of the restrict did now not
lessen its importance, in particular because the net had now come to be one of the important way
of exercise the proper to freedom of expression and records. The measure in question therefore
amounted to interference through the public government with the applicants proper to freedom
of expression. Such interference might breach article 10 except it became prescribed via
regulation, pursued one or more legitimate pursuits and turned into necessary in a democratic
society to achieve such ambitions. A rule turned into foreseeable in its software if it became
formulated with sufficient precision to allow individuals- if need be, with appropriate
recommendation -to modify their conduct. via virtue of regulation no. 5651, a court could order
the blockading of get entry to the content posted on the net if there were sufficient motives to
suspect that the content material given rise to the criminal offence. In this case nether the Google
site or Mr. Yildrim site are subjected to the proceeding of the court. And there is no regulation to
block the wholesale of access by the court and nor the law authorized the court to block the total
domain for example Google sites. The Court experienced that the law had conferred wide-
ranging powers on an administrative body, the TB, in the implementation of a blocking order
originally issued in relation to a specified site.

The Court finally stated that Article 10. 1 of the ECHR stated that the right to freedom of
expression applied despite of frontiers. The measure in the given case had therefore been
arbitrary and the judicial review of the blocking of access is insufficient to prevent abuses. Thus
it leads to the violation of Article 10 of the ECHR.
11

The court also ordered that Turkey have to provide compensation of 7,500 Euros in respect of no
financial damage and 1,000 Euro in respect of costs and expenses to the applicant

2. ottopreminger institut v. Austria17 (European Court of Human Right)

Facts:

1. In the given case the OTTO PREMINGER INSTITUTE (Applicant) fr audiovisuelle

Mediengestaltung (OPI) had planned to launch a film, and in this film God the Father is
depicted as very old, infirm to do anything and an unproductive person, Jesus Christ as a
mummys boy of low intelligence and the Virgin Mary as an unprincipled wanton. They
conspire with the Devil to punish mankind for its wickedness.
2. Innsbruck diocese of the RCC (Respondent) had requested to file the complaint against
the OPI, the Public prosecutor has filed the criminal proceeding against the manager of
OPI on the charge of withering religious doctrines and ordered to seized the film as per
regulation 36 of the Austrian media Act.
3. Austrian regional court ruled out that since creative freedom cant be unlimited, in view
of the gravity of the issue which is related to a film primarily intended to be challenging
and aimed at the sentiments of the Church of the multiple and leads to the violation of
legally protected interests of the people, the basic right of artistic freedom will come after
the freedom of speech and expression by the medium of films.
4. The ECtHR accepted the point that impugned measures follow a legitimate aim under
Article 10.2, namely safeguard the interest of others, i.e., the protection of the right of
citizens not to be affronted in their religious feelings by the public expression of views of
others.
5. The Court ruled out that the Austrian courts, when ordering the seizure and forfeiture of
the film, justifiably held it to be an abusive attack on the Roman Catholic religion
according to the conception of the Tyrolean public. The judgments of the Austrian courts
show that they had respect to the freedom of artistic expression and speech of the film
can support the conclusions arrived at by the national courts, the Court ruled that the

17
20 September 1994, Series A no. 295-A. European Court of Human Rights.
12

seizure does not constitute a violation of Article 10. In respect of circumstances prevail in
the given case, the Court presumed that margin of appreciation is not overstepped by the
Austrian authorities. For the forfeiture of the film this reasoning was also applied, which
is regarded as the normal follow-up to the seizure of the film.

Issue:

In this case the main issue was that whether the seizure of blasphemous (heretical talk
against the God) film violate article 10 of ECHR or not.

Decision of the Court:

In this case the court held that the seizure and forfeiture of the Film Das Liebeskonzil
by the authority of Austria was not considered in the violation of Article 10 of the ECHR. It is
for the Interest of the mass public.

3. Times Newspapers (UK) Ltd VS The United Kingdom18 (UK Court)

In this case the court held that In consideration of its ease of access and its capacity to
store and converse vast amounts of data and information, the role played by Internet is very
important for enhancing the publics procurement of the news and facilitating the spreading of
information usually. Internet archives is maintained by the strict rules and regulation of the court
therefore considers that such records fall within the ambit of the regulation of Article 10 of
ECHR.

4. Miller Verses California19 (United States)

Facts:

This case was originated in Orange County California of United States, avowed
government's power to regulate the obscenity through the medium of internet. In this case Miller
was convicted for mailing voluntary sexually explicit materials under California law through the
mode of internet.

Decision of the court:

18
nos. 3002/03 and 23676/03, 27, 10 March 2009)
19
412 U.S. 15, 93 S. Ct. 2607, source: : NetLaw: Your Rights in the Online World (Rose 360).
13

In the given case Superior Court of California avowed the conviction of Miller by stating
that states do have a suitable interest in segregation of the transmission of obscene materials
though internet. Though, the court said that all pornography except hard-core pornography is
protected by the First Amendment of the US constitution. Their dispute was that soft-core
pornography has some literary, artistic, political, or scientific value.

Significance:

In this case the balance between the government's right to regulate the Obscenity and
freedom of speech was struck down. Inspire of that hard-core pornography is not protected
under the Constitution but soft-core pornography is protected under some condition

This case has given the Millers test to test the obscenity of the content. The Miller Test, which
legally provides the definition of obscenity, is based on what is offensive in a certain
community, geographically defined as a city, state or region, not the United States as a whole.
But the notion of community becomes blurred with the advent of the Internet as the geographic
area of the Internet is nonexistent.

5. United States verses Robert Thomas John20 (United States)

Facts:

This is one of the most important and landmark judgment of the restrictions and banning of
obscene content online which was challenged in United States. Robert Thomas with his wife
Carleen has operated a BBS called Amateur Action Computer Bulletin Board System (AABBS).
They stored pornography images in their BBS so that subscribers to their system could
download the images. Downloading is a process of coping a file from computer to another.
The Thomas required verification of age and payment of a membership fee for a person to access
their BBS. In July 1993, a United States Postal Inspector, Agent David Dirmeyer, received a
complaint and followed through with it. He subscribed to the Thomas' BBS and downloaded
some sexually-explicit images. He also requested to be sent a sexually-explicit magazine and
videos.

20
Case No. 94-20019-G, Source: Virtual Community Standards (Godwin n.p.)
14

Decision of the Court:

The federal grand jury on January 25, 1994 has decided that Thomas' with twelve-count
violated the obscenity laws of the United States. The court imposed the conviction to them and
subsequently they applied for appeal.

Significance:

This case provides the conventional definition of obscenity under online mode. Currently,
a person can be charged for the transmission of obscenity from any community in United States.
However, since online-services/Internet is a global service, one person's obscenity can be
another's art work.

LITERATURE REVIEW

We have to believe in the freedom of expression for the people we look down on.Thus in
this chapter I am dealing with the importance of freedom of speech and expression in the global
arena with respect of Internet and films and what are the laws governing to them. This right is
subject to certain restriction to prevent the misuse of this right and different states have different
laws and different method and process by which they ensure the correct flow of this right.

Articles:

1. Kathleen Ann Ruane , Legislative Attorney, September 8, 2014, Freedom of Speech and
Press: Exceptions to the First Amendment.

This article talks about the first amendment of the US first amendment and the limitation
to the freedom of speech and expression. This article provides a general idea of the major
exceptions and limitations to the 1st amendment of the ways that the Supreme Court has
interpreted the guarantee of freedom of speech and press to provide no protection or only limited
protection for some types of speech.
15

2. Sodhganga Article, Chapter 2 ,cited by Dr. Sridhar Madhabhusi, The Law of Expression, An
Analytical Commentary on Law for Media 22 (Asia Law House, Hyderabad, 2007).

This article dealt with the comparison of international laws on freedom of speech and expression
with Indian laws and importance of Article 19 of UDHR.

3. EU Human Rights Guidelines on Freedom of Expression Online and Offline, FOREIGN

AFFAIRS Council meeting Brussels, 12 May 2014

This article dealt with the European laws on offline and online mode of speech and expression
and their limitation.

Countries whose laws are taken into consideration:

A. European Union
B. New Zealand
C. UK
D. USA

CONCLUSION

On looking into the rules and regulation of different common laws country it can be
concluded that the right of freedom of expression and speech supports all other legal rights of the
person, and which is important in both global arena and regional conventions on human rights
(ICCPR, ECHR etc.). Its a wide right provided to citizen of the nations, recognising the special
significance of the media in spreading information in society, and protecting both popular and
offensive speech, as well as commercial speech. But, its a complex right ever, as it is subjected
to the limitation and restriction, for the protection of speaker and listener both. The laws for the
protection of listeners and viewers are recognized under international law as a concern of enough
importance to merit imposing special material restrictions on broadcasting companies. In most
democratic countries, statutory authority are authorized to set codes of conduct for broadcasters
covering a wider choice of issues, including safety of children and women in the society,
national security etc. Thus there should be a balance between the power to use right and
restriction of the right of speech and expression.