It can be challenging to defend freedom of expression. You have to be ready to also defend the right of others to express views that you may feel are offensive or completely wrong.
The European court of human rights, which oversees compliance with the European convention on human rights, has confirmed this. In the famous Handyside case the court stated that freedom of expression does not protect only expressions that are favourably received or regarded as inoffensive or as a matter of indifference.
The right to freedom of expression also protects expressions that offend, shock or disturb.
The Handyside case concerned a book with information about sex for young people, which Richard Handyside wanted to publish in the United Kingdom. He was convicted under a law about obscene publications and appealed to the European court of human rights.
Handyside did not win his case, but the court’s statement about freedom of expression has had a great influence since the case in 1976. In its decision the court emphasised how important the right to freedom of expression is in a democratic society.
The statement by the European court of human rights does not mean that freedom of expression would always protect expressions that offend, shock or disturb, but that the starting point is that freedom of expression also comprises these kinds of expressions.
Freedom of expression is not unlimited. The European convention on human rights allows many restrictions, provided that they fulfill certain criteria, which include that they must be necessary in a democratic society.
In Finland acceptable restrictions on freedom of expression include, for example, the criminal code’s provisions concerning ethnic agitation, defamation and dissemination of information that violates personal privacy. Many experts and international organisations view the criminalisation of blasphemy, which forms part of the crime breach of the sanctity of religion, as an unacceptable restriction of freedom of expression. Criticism of religions and churches should also be allowed. Read a short guide to freedom of expression in Finnish here.
Freedom of expression does not give a right to violate other rights and other rights need to be taken into account when assessing the limits of freedom of expression. Complicated situations can arise where it has to be determined which right is most important in a particular context.
For example, equality is one of the important rights that can be part of this kind of situation. According to Finland’s constitution everyone is equal before the law and without an acceptable reason no one is to be treated differently from other persons on grounds such as age, religion, opinion or health.
When freedom of expression comes up in public debates it usually concerns controversial, exceptional cases or provocative statements. The exceptional cases and those who make the most noise get the attention in the media and in the debates.
But freedom of expression is a democratic right that belongs to each one of us. Despite this, certain groups get very little attention in the media or in public debates when it comes to freedom of expression – for example persons with disabilities, children and older persons.
People who belong to these groups can encounter great difficulties in trying to realise their right to freedom of expression and right to receive information from others, which is part of the right to freedom of expression. This can for example concern a person with a disability, who needs interpretation, a child who does not get heard or an older person who needs help with the accessibility of information.
Without freedom of expression, you cannot be an active participant in society.
In a democratic society it should be seen as a particularly important that groups that have greater difficulties than others in realising their right to freedom of expression can make themselves heard in public debates about freedom of expression. Currently that is not the case.
Joy Hyvärinen is a member of the working group on Freedom of expression in the digital age and a member of Finnish PEN’s board