Article 19 – Freedom of expression

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What does this right mean?

The right protects both having an opinion and expressing it. That first aspect, having an opinion, is even absolute: no one may restrict that. The expression of opinions can be restricted, however, for instance because an opinion harms others. If a person or organisation crosses the boundaries of freedom of expression, the judge can intervene. For instance, expressions may not be discriminating or endanger public order.

Not just the right to freedom of expression is covered under Article 19, but also the right to be able to freely choose where anyone gets his or her information, be it offline or online and also beyond borders. For this, you can think along the lines of the role of the media and journalists, who gather and disseminate information.

Free expression is the base of human rights, the root of human nature and the mother of truth.

What is the history of this right?

The right to free expression is often considered a condition for carrying out all human rights. One of the most important reasons to include Article 19 in the Universal Declaration was the German Nazi regime from before and during the Second World War. In Germany and all occupied countries, critical media were censored or banned and people were arrested and even murdered for expressing their opinions. So, there was no free access to information. At the same time, the Nazi regime made extensive use of propaganda which called for hatred and violence. With this, both too little and too much freedom of expression led to great horrors.

During the negotiations on the text, this resulted in a complicated question: how far did freedom of expression reach? Did all kinds of opinions have to be protected? Or should there be interventions if expressions lead to danger for others? And if you allow that, how do you then prevent censorship by the state? How tolerantly should the intolerant expressions of for instance Nazi and fascist groups be dealt with? There were no easy answers to any of these questions and states disagreed very much on many points. The text of Article 19 is therefore kept quite general so most states could still agree to it.

Pillarisation and filter bubbles

Not just freedom of expression is covered under Article 19 of the UDHR, but also the right to freely choose where anyone gets his or her information from. In the first decades after the Second World War, Dutch society was pillarised; society was split up in various groups based on religions or societal beliefs. The groups tolerated each other in this system, but they were separated in many aspects beyond that. Each pillar had its own schools or sports associations, for instance, but a Catholic would also not go to a Protestant bake or butcher. And vice versa. On top of that, each pillar had its own sources of information, such as their own newspaper or broadcaster. This pillarisation is nearly non-existent today and it is much easier to gain access to many various media, especially online. But some people, also due to the algorithms of social media platforms, are still stuck in their own filter bubbles. Besides this, many countries still have online censorship, which makes free access to information not well possible.

Where and how is this right documented?

In the Netherlands, the right to freedom of expression is also in Article 7 of the Constitution.

At a European level, the rights to freedom of information gathering and expression are merged, such as in Article 10 of the European Convention on Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union.

In the worldwide International Covenant on Civil and Political Rights, the freedoms to gather information, form an opinion and hold an opinion are enshrined together in Article 19. Each time, the wordings are just a little bit different; the right to freedom of expression probably has the most different formulations of all human rights.

How topical is this human right?

Based on Article 19 of the UDHR, everyone has the right to form a opinion AND express this opinion. This leads to all kinds of questions: Especially in times of digitalization, in which there are all kinds of concerns on the spreading of untruths: fake news. To which extent may the government intervene in such cases and how do you prevent intervention from escalating into censorship at the same time? And not just states have much influence on how big freedom of expression is, social media companies also decide to a big degree what is and is not visible online.

On top of that, the anonymity online also makes it more difficult to find out who is spreading untruths or opinions which go beyond freedom of expression. All in all, the old question from 1948 how tolerantly the expression of intolerant and extreme opinions had to be dealt with is still current, especially also online.

The freedom of expression also varies based on the role someone plays in society: so, based on which profession someone has. The European Court of Human Rights (EctHR) has further explained freedom of expression for certain groups in its rulings. One example is that journalists are entitled to additional protection. The EctHR ruled they have an important role in disseminating information and news, and in sharing their opinions. This makes them ‘guard dogs of democracy’, for instance if they expose abuse of power or corruption.

Politicians have a broad freedom of expression too, but they also carry a special responsibility. On the one hand, politicians have to be able to be critical on ongoing interests in society and on those who are in power. On the other hand, they have to prevent people being incited to intolerance against other groups. One example of a case in which the judge had to rule whether or not a politician had crossed the boundaries of free expression is the case [in Dutch] against PVV Leader Geert Wilders for group defamation of people of Moroccan-Dutch descent. So, if there is disagreement on how far freedom of expression reaches, it is the judge who has to weigh the various interests and rights against each other.