Stifling of freedom of expression via the law is increasingly a problem in Europe. According to data from the Platform to promote the protection of journalism and the safety of journalists, there has been a sharp rise in the detention and imprisonment of journalists since 2019. The European Court of Human Rights has repeatedly found that excessive or unjustified limits on freedom of expression not only infringe upon individual rights but also pose serious dangers to democratic society as a whole. 

How new Council of Europe guidance protects democratic values 

It is in the light of this growing trend of disproportionate restrictions on freedom of expression that the Council of Europe has released a new Guide aimed at limiting the use of criminal law to restrict freedom of expression. The guide offers a detailed overview of the European Court of Human Rights’ case-law, highlighting the risks posed when criminal sanctions are used to suppress free speech and choke off plurality of opinions. 

While acknowledging that some forms of speech – such as incitement to violence or hate speech – may justifiably be criminalised, the guide demonstrates that applying criminal law to less harmful expressions can have a chilling effect. Putting others off from expressing themselves silences the critical, dissenting or unpopular voices that are vital to healthy democracy.  

As Alain Berset, Secretary General of the Council of Europe, wrote in a recent piece, the risks to democracy include the use of “the tools of democracy itself – its laws, institutions, and freedoms – to restrict rights, suppress dissent … or stifle criticism”. 

Democratic security is key to protecting Europe 

European states have an obligation – supported by the Council of Europe – to uphold human rights and freedom of expression. That includes ensuring that individuals can debate freely in the public square without fear of the law. 

Freedom of expression, supported by an independent and pluralist media, remains a cornerstone of democracy. And democratic security – the resilience of our democratic institutions, freedoms, and values – is our first line of defence against hostile forces that wish to harm our societies.

"The right to freedom of expression protects political speech, discussion on matters of public importance, artistic expression, information of a commercial nature, and entertainment such as music. It covers “speech”, whether spoken, in writing, online, or in broadcast, as well as other expressive acts, such as performances, protest, art, erecting public sculptures as a form of protest, even the wearing of particular clothes." For more details on the applicability of Article 10 along with examples, see European Court of Human Rights, (2022), Guide on Article 10 of the European Convention on Human Rights, p. 12.

The Council of Europe’s New Democratic Pact for Europe is the new inclusive process to reinforce the foundations of democracy, including the fundamental right of freedom expression, in an increasingly challenging environment. It puts our values – not immoderate use of law – at the heart of our defence. As Mr Berset puts it: 

“This is where the real danger lies: trading democratic security for the security of democracy, without even realising it.” 

 New Democratic Pact for Europe 

 Platform to promote the protection of journalism and the safety of journalists 

 Impact of the European Convention on Human Rights 

 Excessive limits on freedom of expression harm Europe’s democratic security (newsroom)

Guide on Article 10 of the European Convention on Human Rights