The 11th of all EU-r rights: freedom of expression and how the Charter contributes

Can we say, read and hear whatever we want? Or do States limit our “freedom to hold opinions and to receive and impart information and ideas”[1]? Well, sometimes States indeed prescribe what sort of views can be held and what kind of information can be shared.[2] Take for instance the recent example of a law in Romania approved by both parliamentary chambers: should it enter into force, it will legally ban educators from propagating theories and opinions on gender identity according to which, gender is a separate concept from biological sex.[3] Holding the wrong views might even become a crime, as an example from Hungary shows, where, under the umbrella of anti-COVID-measures, a law had been introduced to criminalise any person who, ”in front of a large audience, states or disseminates any untrue fact or any misrepresented true fact that is capable of hindering or preventing the efficiency of protection”.[4] Such types of interferences will often come in the language of protection. Nevertheless, they have to remain in the strict boundaries set by fundamental rights, including – wherever EU law applies – Article 11 of the Charter.

The Charter right in action

Let’s recall the usual disclaimer: the Charter only applies where the facts of a case fall within the scope of EU legislation. This leaves many issues regarding freedom of expression without protection by the Charter. At the same time, it is important to recall that the EU legislator has adopted rules in important areas such as public broadcasting[5], aspects of copyright and related rights[6], data protection[7], the protection of consumers[8], electronic commmunication[9] or rules on access to documents[10]. In all these areas, Article 11 of the Charter has already played a role before the EU Court in Luxembourg.

What in practice often arises is the question how to ponder the freedom of expression against the right to private and family life (Article 7) and data protection (Article 8). Especially in times of data processing and the omnipresence of the internet, the interest of all to have access to information may conflict with the right of the individual to keep certain information private. The EU Court in Luxembourg stresses that the data subject’s rights protected by Articles 7 and 8 of the Charter override, as a general rule, the freedom of information of internet users. But a balance has to be found. And that balance may depend ”on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”[11]

An example of how the EU legislator protects freedom of opinion in the EU’s external relations On 12 May 2014, the Council of the EU adopted non-binding Guidelines on Freedom of Expression Online and Offline which put special emphasis on media diversity and freedom. It guides the EU’s external action and provides, in Annex I, examples of actions or laws that may violate or undermine the enjoyment of the right to freedom of opinion and expression. These include, not only attacks on journalists, defamation, and blasphemy laws but also the abusive invocation of public morals, national security or protection of “national values”.

What do the constitutions of the Member States say?

The freedom of expression is a very well established human right, with all constitutions protecting its basic elements explicitly. But this does not mean that the Charter has nothing to add as the second paragraph of Article 11 dedicated to media freedom shows: the freedom of the press finds explicit protection in only in a fourth of the Member States’ constitutions.[12] The diversity of press is explicitly referred to in the constitutions of Hungary and Portugal,[13] the Lithuanian constitution prohibits the monopolisation of the mass media and the Portuguese constitution tasks the State to prevent media concentration.[14] Most detailed in this regard is Article 39 of the Portuguese constitution which lays down the establishment of an independent body tasked with ensuring seven key elements in the media, including non-concentration of ownership, independence, respect for rights, or diversity of opinions.

Some constitutions link the freedom of expression with a right to access information, as is the case in Croatia, Estonia, Finland and Romania.[15] Interestingly, in the Czech Republic, Estonia and Slovakia, state authorities are explicitly obliged to provide information on their activities.[16] The Estonian constitution explicitly forbids  state authorities from gathering information on the views of their citizens and in Croatia, Portugal and Slovenia the constitutions establish a right to have false information corrected.[17]

The wider context of the freedom of expression, as a pillar of political human rights becomes evident in the Swedish constitution, which lumps five rights together, in one single article: the freedom of expression, freedom of information, freedom of assembly, freedom to demonstrate and the freedom of association.[18] Special provisions for political advertisment can be found in the constitutions of Hungary[19] and Portugal[20] and access to broadcasting time for political parties is regulated in the constitutions of Portugal[21] and Romania[22].

Finally, various constitutions provide explicitly for certain goods, in the name of which, the freedom of expression can be limited. As the examples of Hungary and Romania show, these goods may include the dignity of “the nation”.[23] However, limitations to Article 11 of the Charter can only be justified if and as long as they are in line with Art. 10(2) of the European Convention of Human Rights.[24]

So what?

Freedom of expression is key for a vivid democratic society. The Charter further stresses this element. Whereas the first paragraph of its Article 11 just copies and pastes the freedom of expression as laid down in the Council of Europe’s Convention on Human Rights, its second paragraph adds that ”the freedom and pluralism of the media shall be respected”. This sends a clear message that not only, the freedom of expression is of special relevance to journalists[25] but that media pluralism is, as a systemic result and precondition of the freedom of expression and also part and parcel of the EU’s core values.[26]

Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

[1] See Art.11 of the Charter.

[2] Of course, some views do not even fall under the protective shield of the freedom of expression. For instance, Article 6 of the Audiovisual Media Services Directive (Directive 2010/13/EU) obliges Member States to make sure „by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality.“

[3] In a statement adopted on 17 June 2020, the university of Bucharest stressed that the law would violate various principles such as the principle of university autonomy and of academic freedom. Student organisations signed a petition to the President to send the bill back to Parliament for re-examination.

[4] Section 337 (2) of the Criminal Code as added by Section 10(2) of the Coronavirus Act. Whereas the Romanian example might be considered to fall outside the scope of EU legislation and therefore not to trigger the application of the Charter, this was different for the Hungarian law. See the legal opinion (pages 19-26) of the Open Society Justice Initiative and Blackstone Chambers on Hungary’s Authorisation Act and associated decrees presented on 8 June 2020.

[5] See e.g. Directive 2010/13/EU.

[6] See e.g. Directive 2001/29/EC.

[7] See e.g. Regulation (EU) 2016/679.

[8] See e.g. Directive 2011/83/EU.

[9] See e.g. Directive 2002/58/EC.

[10] See e.g. Regulation (EC) No 1049/2001

[11] CJEU, Google Spain and Google, C‑131/12, judgment of 13 May 2014, Para 81. Note that Article 17(3)(a) of the General Data Protection Regulation (regulation 2016/679) expressly lays down the requirement to strike a balance between Articles 7 and 8 of the Charter, on the one hand, and the fundamental right of freedom of information guaranteed by Article 11 of the Charter, on the other.

[12] Art. 25 of the Belgian constitution, Art. 40(1) of the Bulgarian constitution, Art. 38 of the Croatian constitution, Art. 14(1) of the Greek constitution, Art. IX of the Hungarian constitution, Art. 38 (2) of the Portuguese constitution, Art. 30 (3) of the Romanian constitution.

[13] Art. IX (2) of the Hungarian constitution, Art. 38 (2) of the Portuguese constitution.

[14] Art. 44 of the Lithuanian constitution, Art. 38 (4) of the Portuguese constitution.

[15] Art. 38 of the Croatian constitution (referring to journalists), Article 44 of the Estonian constitution, Section 12 of the Finnish constitution, Art. 31(1) of the Romanian constitution.

[16] Art. 17 (5) of the Czech constitution, Art. 44 of the Estonian constitution, Art.26 (5) of the Slovak constitution.

[17] Art. 42 of the Estonian constitution, Art.38 of the Croatian constitution, Art. 37 (4) of the Portuguese constitution, Art. 40 of the Slovenian constitution.

[18] Art. 1 in chapter 2 of the Instrument of Government.

[19] Art IX (3) of the Hungarian constitution.

[20] Art. 40 (3) of the Portuguese constitution.

[21] Art. 40 (1) (2) of the Portuguese constitution.

[22] Art. 31 (5) of the Romanian constitution.

[23] The protection of children is referred to in Section 12 of the Finnish constitution, Art. 5 (2) of the German constitution, Art. 7 (3) of the Dutch constitution and Art. 31 (3) of the Romanian constitution. Art. IX (5) of the Hungarian constitution  mentions “the dignity of the Hungarian nation or of any national, ethnic, racial or religious community”. Art. 40.6.1. of the Irish constitution refers to “public order or morality or the authority  of the state” and the Lithuanian constitution to “human health, honour or dignity, private life, or morals, or to defend the constitutional order”. Art. 30 (7) of the Romanian constitution prohibits amongst others any “defamation of the country and the nation” or incitement to “territorial separatism”. Art 41 (2) of the Maltese constitution mentions in this context amongst others the “authority and independence of the courts”.

[24] This is due to Art. 52 (3) of the Charter. Art. 10(2) of the ECHR reads as follows: “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 the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.“

[25] See Spanish Supreme Court, case STS 2957/2015, decision of 7 May 2015, 4th Para under “Tercero”.

[26] Media pluralism is an important element for the European Commission when monitoring the rule of law and the EU is funding the Media Pluralism Monitor situated at the European University Institute in Florence.