ROLE Essay Competition 2019 English Group First Runner-up

Freedom of expression and rule of law

 

Rule of law is an expression that is often used to describe a civilized society and the positive aspects of its system. It is given three meanings by Professor A.V. Dicey: no man is punishable without breaking the law; no man is above the law and everyone is equal before the law; the constitution is pervaded by the rule of law where general principles of the constitution are the results of judicial decisions.[i] Freedom of expression, on the other hand, is a key constituent for the fulfillment of the rule of law. It is defined in Article 19 of the Universal Declaration of Human Rights as the “freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”[ii]

 

The two concepts are intricately linked and play an important role in the sound progression of society. First, freedom of expression enables the availability of knowledge and stimulates the mind. John Stuart Mill argues that freedom of expression allows for personal growth and self-development and is vital to the “free development of originality” and the realization of one’s potential.[iii] Innovation and creativity can thus be encouraged. At the same time, the acquisition of knowledge allows people to analyze sources critically, while a diverse media imparts information and contributes to public debate, and serves as a checking function to monitor the government, hence fostering the rule of law by preventing the abuse of power.

 

It is also important to note that freedom of expression is the prerequisite to the existence of other human rights. Without freedom of expression, various freedom which allow people to voice their opinions, such as that of speech, of the press and publication, of assembly, of procession and of demonstration, may as well be forbidden. Freedom of thought, conscience and religion will also be hindered as one’s thought is restrained without free interaction with others. Though Professor Raz points out a non-democratic legal system based on the denial of human rights may, in principle, conform to the requirements of the rule of law[iv], Lord Bingham argues that the rule of law can only be observed with adequate protection of it.[v] In fact, the absence of freedom of expression and human rights creates a breeding ground for oppression. The Nazi regime, where the law banned all Jewish literary work[vi] and prohibited criticisms of the party, shaped the populace into a mass of blind followers who supported the horrendous acts of the Holocaust. This gave rise to tyranny, with rulers being above the law and certain groups being subjugated. Hence, in order to prevent that, the law cannot exist as merely a body of statutory laws, but with the freedom of expression and other human rights being a crucial component of it.

 

Despite the advantages of freedom of expression, it is essential that the law sets limitation to it under the following circumstances in order to balance the interests of different parties. First, freedom of expression must be balanced with other rights of individuals. The case Von Hannover v. German sufficiently illustrates the careful balance of the publishing companies’ freedom of expression against the applicants’ right to respect for private life. In doing so, the court decided that the domestic court’s refusal to issue an injunction restraining further publication of the applicants’ photos did not violate their right to private life, by taking into account the circumstances where the photos were taken and their contribution to a debate of general interest.[vii] Second, expressions that put public safety at risk should be forbidden, otherwise, devastation may occur. The incitement of hate speech, for instance, can result in disaster. An example is the use of abusive language and virulent images on Facebook, which contributes to the Rohingya genocide, forcing over 671,000 Muslim Rohingya to seek refuge in Bangladesh.[viii] Terrorism and its spread should also be strictly prohibited by the law for the protection of national security.

 

Freedom of expression should also be limited to protect public health and morals. Yet, grey areas may appear which make limitation difficult. In the Naked Rambler case, where a man spent years on a “naked crusade” to support public nudity, the court decided to charge him with breach of peace due to his “deliberately repetitive antisocial conduct”.[ix] However, it can also be argued that his freedom of expression should be prioritized, as he had done no harm when exercising it except for being seen as socially inappropriate, a concept which varies according to moral standards and evolves over time. Thus, there is no absolute way to limit freedom of expression.

 

In conclusion, freedom of expression is a central building block of the rule of law and benefits society, while it is also important to properly limit and balance it with public interests in a sound legal system.

 

[i] A.V. Dicey, 1885, An Introduction to the Study of Law of the Constitution, Macmillan.

 

[ii] The Universal Declaration of Human Rights Article 19. United for Human Rights. [last accessed: 26/8/2019] https://www.humanrights.com/course/lesson/articles-19-25/read-article-19.html

 

[iii] Kim Treiger-Bar-Am, 2019, Positive Freedom and the Law, Routledge.

 

[iv] Joseph Raz, 1979, “The Rule of Law and its Virtue”, The authority of law: Essays on law and morality, Oxford University Press.

 

[v] Tom Bingham, 2010, The Rule of Law, Penguin Books.

 

[vi] “1933 Book Burnings”, United States Holocaust Memorial Museum. [last accessed: 26/8/2019] https://www.ushmm.org/collections/bibliography/1933-book-burnings

 

[vii] Case of Von Hannover v. Germany, 2004, European Court of Human Rights. [last accessed: 26/8/2019] https://hudoc.echr.coe.int/eng#{"itemid":["001-61853"]}

 

[viii] “U.N. Fact Finders Say Facebook Played a ‘Determining’ Role in Violence Against the Rohingya”, Eli Meixler, 13/3/2018, Time. [last accessed: 26/8/2019] https://time.com/5197039/un-facebook-myanmar-rohingya-violence/

 

[ix] Case of Gough v. The United Kingdom, 2014, European Court of Human Rights. [last accessed: 26/8/2019] https://hudoc.echr.coe.int/eng#{"itemid":["001-147623"]}