Any restrictions on freedom of expression must be lawful and must be an exception made on individual cases. Therefore, the police, the courts, state institutions and even private companies and organisations must demonstrate that any restrictive measure:
- is established by law
- pursues a legitimate aim
- is necessary to ensure that legitimate aim
- and is proportional
Learn more about each of these criteria:
Any restrictive measure must be based on law. This means that the police or even your employer cannot restrict your freedom of expression unless this possibility is provided by law.
example The French Law on the Freedom of the Press requires that a person who publicly incites hatred against a certain ethnic group should be punished.
example According to the French principle of contractual freedom which also applies in the field of labor, an employer is allowed to adopt internal rules at the workplace, which prohibit a person from disclosing information received at work. Also, the employment contract may include a confidentiality clause.
Any restrictive measure must pursue an important objective, which the state needs to protect (legitimate aim). These aims are listed in legal documents, such as the Criminal Code or the Law on the Freedom of the Press and the European Convention on Human Rights.
example Restrictions may be imposed to protect against the disclosure of confidential information, to protect other people’s rights and interests (such as their honor or private life etc.) or to prevent disorder or crime etc.
Any restrictive measure must only be taken if it is really necessary to reach the legitimate aim. State institutions will have the duty to prove that necessity.
example To ensure the impartiality of courts, it might be reasonable that a judge is not allowed to be a member of a political party. However, the imposition of such a restriction on a policeman would not be reasonable.
Firstly, any restrictive measure must be proportional to the legitimate aim. This means that your right to express yourself must be balanced against those rights or interests which the state is trying to protect.
example The court would need to give arguments why the protection of the privacy of a public figure in a specific case is more important than the public’s interest in receiving the information that has been made public.
example The protection of a public person’s privacy is more important in a case where photographs of a Princess were taken without her consent, showing details of her private life that made no contribution to a debate of public interest but only satisfied the curiosity of the readers.
Secondly, the restriction as well as the applied sanction must be proportional to the legitimate aim. If your statements have violated the rights of other persons, the sanction must be proportional to that particular violation. This means that the penalty you receive must be reasonable and correspond to the gravity of your violation. This is particularly important to prevent a risk of self-censorship from journalists that would hamper the contribution of the press to discussions of matters of public interest.
example If the court applied criminal sanctions to you for excessive criticism of a public official, this would most likely be disproportional. If the court required you to pay a sum three times higher than was previously ever awarded in a defamation case, this would also be disproportional.