Chapter one

Freedom of expression
Meaning and justification of freedom of expression
Means any act of seeking, receiving and imparting information or ideas, regardless of the
medium used without interference by public authority and regardless of frontiers.

This freedom consists of the freedom of opinion, freedom to impart and receive information and
ideas of public interest.
- Example, demonstration, public discussion, through any means of mass media etc. - More
general than the press (gestures, oral, written)
Legal ground of freedom of expression
The Universal Declaration of Human Rights enshrines freedom of expression as stated under art
19 every one has the rights to freedom of opinion and expression this rights includes the right to
hold opinions without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.

And this concept also reflected in the African Charters of Human and People’s Rights, which
states in Article 9:

1. Every individual shall have the right to receive the information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

There is constitutional clause which address the freedom of expression. Article 29 (2) stated
everyone has the right to freedom of expression without any interference. This right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers or
limit, either orally, in writing or in print, in the form of art, or through any media of his choice.

Even though freedom of expression and information is the principle, there is also a variety of
legislation (and jurisprudence applying this legislation) restricting the freedom of expression?
These include national security, public safety, prevention of crimes, independence of judiciary,
the right to privacy, public morality, public health, protection of the young and information
deemed secret. Such restrictions must fulfil the requirements of prescribed by law, legitimate aim
and necessary in a democratic society. These measures and regulations are to be understood as a
function of a pluralistic media landscape in the promotion of freedom of expression and
information and the right of the public to be properly informed on matters of public interest. All
these issues, especially the legal framework of the relationship between a democratic society and
media freedom will be the focus of the course. In addition, the issue of state interference and the
legal problems with regard to freedom of expression and information will be analyzed.

Extent of freedom of expression the extent of freedom of expression in Ethiopia is characterized

by a deep and troubling contradiction. While the country's laws provide strong protections, the
reality for journalists and citizens is one of increasing government restrictions, reduction media
space, and widespread self-censorship.
Ethiopia's Constitution (Article 29) guarantees freedom of expression without interference and
prohibits censorship. The Media Proclamation No. 1238/2021 was a landmark reform that
legitimate defamation and ended pre-trial detention for journalists. However, in practice, these
laws are undermined by vague legislation like the Hate Speech and Disinformation Proclamation,
which authorities use to selectively silence critics. International watchdogs describe press
freedom as existing only "on paper

Freedom of information

NB: freedom of expression and information are considered as on principle of democratic society
one of the basic conditions for progress and the development of human being.

Freedom of information

Freedom of Speech - Is the freedom of speak freely without censorship or limitations. - It is a

verbal one - This right is only limited if
· The speech is pornography or hate speech
· There is legal sanction
· To prevent harm to others etc.

Justifications for Protection

A. Mill's argument from truth
Is the predominant and most durable of the underlying rationales for the protection of speech.
Mill argues that it is only by the 'collision of adverse opinions' that truth is discovered or
confirmed
• Used by Justice Holmes in Abrams v US asserting that all truths were relative and that they
can only be judged 'in the competition of the market
It posits that foe is not an end in itself but a means of identifying and accepting truth. It is of little
or no application to obscene speech or personal abuse which often contains no factual assertions.

B. Democratic Self-governance (Alexander Meiklejohn)

The main purpose of protecting FoE was to protect the rights of citizens to understand matters of
political concern so as to enable them to participate meaningfully in the democratic process
Meiklejohn stated that “the-principle of the freedom of speech springs from the necessities of the
program of self-government: universal suffrage. The importance was placed on political speech
by amongst others. It potentially excludes large areas of expression that are traditionally
considered important, such as artistic and literary expression

C. Self-fulfillment
Argues that FoE enlarges the prospects for individual self-fulfillment' or to allow 'personal
growth and self-realization'.
So it is not only a means to an end but also an end itself. It embraces the protection of expression
such as obscenity which would not receive protection under either of the two other rationales.

Analysis of Justifications for Limitations

• Why Limitation?
• speech always takes place within a context of competing values
• The Harm Principle and Free Speech
• “Liberty should exist with every subject matter so that we have “absolute freedom of
opinion and sentiment on all subjects, practical or speculative, scientific, moral or
theological”.
• “The fullest liberty of expression is required to push our arguments to their logical limits,
rather than the limits of social embarrassment”.
• The Harm Principle, which states that “the only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to prevent harm
to others.”
• The case of corn dealer
• Mill distinguishes between legitimate and illegitimate harm, and it is only when speech
causes a direct and clear violation of rights that it can be limited.
 Mill's Harm Principle and Pornography
Feinberg notes in Offense to Others: the Moral limits of the Criminal Law “there is no necessary
link between pornography and obscenity; pornography is material that is intended to cause sexual
arousal, whereas something is obscene when it causes repugnance, revulsion and shock.
Pornography can be, but is not necessarily “

Feminists argument: pornography degrades, endangers, and harms the lives of women. This
argument, to have force, must distinguish between pornography as a general class of material
(aimed at sexual arousal) and pornography that causes harm by depicting acts that violently abuse
women. We have to into account it.

In this last case, the harm principle can legitimately be invoked when a child is involved: the
issue of consent is at stake difficult to make the same claim for consenting adults. It is hard to
show that the actual people who appear in videos, magazines… are being physically harmed, and
it is even more difficult to prove that harm results for women as a whole

Mill's Harm Principle and Hate Speech

In many jurisdictions, there are limitations on hate speech, but it is debatable whether these can
be justified by the harm principle as formulated by Mill One would have to show that such
speech violated rights, directly and in the first instance. the Nazi march through Skokie, Illinois
where Jewish community predominantly live dressed in storm trooper uniforms and wearing
swastikas(US Supreme Court interpreted the wearing of swastikas as “symbolic political speech )

Most people, especially those who lived in Skokie, were outraged and offended by the march, but
were they harmed? There was no plan to cause physical injury or to damage property Argument
against allowing the march: it would cause harm by inciting opponents of the march to riot. It is
the harm that could potentially be done to the people speaking that becomes the focal point and
not the harm done to those who are the subject of the hate.

If we claim that the villagers could be psychologically harmed, it is more difficult to demonstrate
than harm to a person's legal rights Thus, it is only when we can show direct harm to rights,
which will almost always mean when an attack is made against a specific individual or a small
group of persons, that it is legitimate to impose a sanction.
The Offense Principle and Free Speech(Joel Feinberg's)

Feinberg suggests, we also need an offense principle that can act as a guide to public criticism.
The harm principle sets the bar too high and that we can legitimately prohibit some forms of
expression because they are very violent. These are victimless crimes and hence the punishment
has to have a basis in the supposed offensiveness of the behavior rather than the harm that is
caused.

He also suggests that a variety of factors need to be taken into account when deciding whether
speech can be limited by the offense principle. These include the extent, duration and social value
of the speech, the relief with which it can be avoided, the motives of the speaker, the number of
people offended the intensity or strength of the offense, and the general interest of the community
at large.

Pornography and the Offense Principle

Where it is easy to avoid being offended: should not be banned. It should also be legal to
advertise blue films, but some limits could be placed on the content of the advertisement so that
sexually explicit material is not placed on billboards in public places

Pornography that is extremely offensive because of its violent or degrading content: the offense is
more profound: simply knowing that such films exist is enough to deeply offend many people.
Hence, Feinberg argues that even though some forms of pornography are profoundly offensive to
a lot of people, they should still be permitted.

INTERPRETATION OF FREEDOM OF EXPRESSION AND ITS RESTRICTIONS

• THE LAW OF THE ECHR: FREEDOM OF EXPRESSION

• In Jersild V Denmark

• Article 10 of the ECHR provides:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by 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 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.

The exceptions under art. 10(2) should be narrowly interpreted. the Court has to be satisfied that
the interference was necessary having regard to the facts and circumstances prevailing in the
specific case before it.

Article 10(2) states that the exercise of freedom of expression carries with it "duties and
responsibilities." This phrase is used to justify restrictions, particularly on certain classes of
people (e.g., civil servants). However, for the media, this concept is applied to enhance their
protection and define their role. The "duties and responsibilities" of journalists mean their
freedom is protected provided they are acting in good faith to provide accurate and reliable
information in accordance with the ethics of journalism. Their role as a "public watchdog" is
central to their special protection under Article 10.
1. Prescribed by law: The restriction must have a basis in domestic law, and that law must be
adequately accessible and precise.
2. Legitimate aim: The restriction must serve one of the specific aims listed in Article 10(2) (e.g.,
national security, protection of morals, protecting the rights of others).
3. Necessary in a democratic society: The restriction must correspond to a "pressing social need"
and be proportionate to the legitimate aim pursued. It is not enough that the measure is "useful"
or "reasonable"; its necessity must be "convincingly established."
· Margin of Appreciation: This is the latitude allowed to member states in their observance of the
Convention. The Court's supervision is strict on core political speech, but the margin is wider for
areas like morals or commercial speech where there is less European consensus.