Freedom of Expression and Its Dilemmas in International Human Rights: A Foundation for Research and Reform
Dr Mahmoud Masud
PMU College of Law
Introduction
An area that engenders fierce debate due to its inherently multifaceted and contested nature is the regulation of freedom of expression within the framework of international human rights law. An examination of the foundational principles underpinning this right reveals significant opportunities for critical inquiry. It invites legal practitioners, academics, researchers, and students alike to engage in attempting to balance the complex tensions between safeguarding (often sentimental) fundamental freedoms against the inconsistent boundaries of free expression. Discussing key legal frameworks and prominent case law principles fosters rigorous research agendas aimed at the protection of competing human rights and liberties, however, without infringing upon the legitimate value of freedom of expression. This blog does not aim to delve into the analytical aspects of case law decisions and literature. Rather, to provide readers (early researchers in particular) with foundational critical insight into, first, key legal provisions of freedom of expression and its restrictions; secondly, the foundational argument used when one advocates for his/her right to freedom of expression; and finally, key considerations that states must observe when attempting to strike a balance between competing human rights. Hopefully, such foundational understanding will generate interest and, possibly, further research.
Key International and Regional Human Rights Law Instruments and Case law Decisions
International and Regional Instruments
One of the earliest post-World War II international human rights instruments that laid the groundwork for a universal approach to human rights is the Universal Declaration of Human Rights (hereinafter, UDHR).[i] Where freedom of expression is concerned, Article 19 of the Universal Declaration of Human Rights (UDHR) proclaims that: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." Although Article 19 articulates the right in broad and aspirational terms, it notably refrains from delineating the permissible scope or limitations on the exercise of this right. Nevertheless, there has been unanimous consensus among scholars and legal practitioners that freedom of expression cannot be absolute and must, in certain circumstances, be subject to restrictions to safeguard other competing rights and interests, such as, but not limited to, freedom of religion, freedom from discrimination, public interest and national security.[ii] Therefore, other international and regional treaties emerged to provide states and courts with a more detailed framework. Most prominently, the International Covenant on Civil and Political Rights (ICCPR hereinafter),[iii] and the European Convention on Human Rights (ECHR).[iv] As most freedom of expression debates occurs in Europe, the ECHR and its Court (European Court of Human Rights (ECtHR hereinafter)) have provided a very comprehensive corpus of case law decisions and debates, which are always cited by individual researchers, practitioners and other regional and domestic courts.
Article 10 of the ECHR (which largely resembles Article 19 of the ICCPR) states:
Article 10(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.
Article 10(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 aforementioned provision imposes on member states a dual obligation: first, to safeguard individuals’ right to freedom of expression, and second, to permit the imposition of restrictions necessary to protect other competing interests, within the framework of what international human rights law refers to as the margin of appreciation. In this context, protected expression encompasses all forms of communication—including spoken, written, performed, or illustrated speech. This extends to the holding of opinions that others may find offensive.[v] The ECtHR in Handyside v UK,[vi] stressed that free speech encompasses “the right to 'offend, shock, and disturb' the state or any sector of the population.” However, akin to Article 19(3) of the ICCPR, Article 10(2) of the ECHR recognises that the right to freedom of expression carries special duties and responsibilities, thereby permitting certain limitations. It is precisely at this intersection that conflicts frequently arise. For instance, an individual may exercise their right to expression in a manner that criticises, insults, or offends another person, prompting the state to impose sanctions such as fines or imprisonment. In response, the individual may petition the ECtHR, alleging that the state has violated their right to freedom of expression under Article 10. In adjudicating such claims, the ECtHR must first determine whether the contested expression falls within the protective scope of Article 10(1). If so, the Court must then assess whether the state's interference can be justified under the permissible limitations outlined in Article 10(2). This necessitates a careful balancing exercise in which the Court evaluates the evidence submitted by both parties to ascertain whether the state’s interference was lawful, thereby determining whether a breach of Article 10 has occurred.
The following section will examine pivotal case law often invoked in allegations of Article 10 violations and proceed to discuss the three-stage test employed by the ECtHR to evaluate the legitimacy of state interferences with freedom of expression.
The Test Procedure of the ECtHR
As previously discussed, once an application is submitted to the European Court of Human Rights (ECtHR), the Court is tasked with striking a delicate balance between the applicant’s right to freedom of expression and the competing interest the state seeks to protect. As stated above, Article 10(2) stresses that any interference by a state member has to, first, be prescribed by law, and secondly, necessary in a democratic society, and finally, for the purpose of, at least, one of the legitimate aims listed under Article 10(2) of the ECHR. However, even if an interference justifies these limitations, the Court will still consider whether the state interference was within the expected margin of appreciation granted by the Convention and is proportionate to the legitimate aim pursued. In undertaking this analysis, the ECtHR carefully assesses the proportionality of the state’s interference, guided by the doctrine of the margin of appreciation. The breadth of this margin is determined by several factors, including the nature of the expression at issue and the legitimacy and necessity of the interests asserted by the state.[vii] The margin of appreciation is best understood as the discretionary leeway afforded to states in regulating expression, recognising that domestic authorities are often better positioned to assess local needs and sensitivities. It permits states a certain flexibility in restricting expression to safeguard other constitutionally or internationally protected rights—for instance, limiting speech to protect vulnerable minority groups from hate speech or shielding minors from exposure to illicit material.[viii] Understandably, the scope of permissible restrictions will vary between states, reflecting diverse cultural, moral, and social priorities. In this context, the margin of appreciation operates as a crucial doctrinal tool, enabling a contextual and pluralistic approach to reconciling freedom of expression with other fundamental rights.[ix]
Identifying Research Gaps
In addressing the above criteria lies a critical and enduring debate: what should be considered a necessary and legitimate interference, and where should the boundary be drawn between expression that transgresses the legitimate limits of freedom of expression and expression that ought to remain protected? Given the pluralistic and culturally diverse nature of the modern world, it is evident that a universal, one-size-fits-all model is neither attainable nor desirable. Instead, continuous and context-sensitive debates are necessary to reconcile, where possible, competing interests. Such debates frequently arise in areas where freedom of expression intersects with, inter alia, public morals, the right to private and family life, freedom of religion, national security, defamation, and blasphemy.[x] From the perspective of this blog’s author, this field represents a particularly compelling area of inquiry, especially for law students, early-career researchers, and legal practitioners. The richness of this field is not due to a paucity of scholarship, but rather to the evolving and dynamic nature of social, political, and legal norms - norms that are increasingly challenged by technological advancements, notably the proliferation of artificial intelligence. These developments necessitate renewed and critical engagement with traditional frameworks governing restricting and protecting freedom of expression.
[i] The Universal Declaration of Human Rights is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings on December 10, 1948.
[ii] Examples of works to read, Alan Haworth, Free Speech: All that Matters, (London: Routledge, 1998), Stanley Fisher, There's No Such Thing as Free Speech…and it's a good thing too, (New York: OUP, 1994), and Mashood Baderin, International Human Rights and Islamic Law, (1st ed, Oxford University Press 2003).
[iii] The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, signed on 16 December 1966 and came into force on 23 March 1976.
[iv] The European Convention on Human Rights is a supranational convention to protect human rights and political freedoms in Europe. Drafted in 1950 by the newly formed Council of Europe, the convention entered into force on 3 September 1953.
[v] See in particular, Javaid Rehman’s Chapter “The Sharī‘ah, International Human Rights Law and the Right to Hold Opinions and Free Expression: After Bilour’s Fatwā” in Marie-Luisa Frick and Andreas, Müller Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives, (Brill, 2013).
[vi] Handyside v United Kingdom Application no. 5493/72, 7 December 1976.
[vii] Ian Leigh, 'Damned if they do, Damned if they don't: the European Court of Human Rights and the Protection of Religion from Attack' (2011) Res Publica 17(1), 55.
[viii] Sami Abu-Sahlieh, ‘Human Rights Conflicts between Islam and the West’ (1990) TWLS, 258.
[ix] For an indepth discussion, see Foster, S Human Rights and Civil Liberties (3rd Ed, Pearson 2011).
11-Sep-2025
