Media Freedom and Pluralism: Media Policy Challenges in the Enlarged Europe

Chapter 5: A Failure in Limiting Restrictions on Freedom of Speech: The Case of the Audiovisual Media Services Directive

CHaPTer 5 a Failure in limiting restrictions on Freedom of speech: The Case of the Audiovisual Media Services Directive PÉter molnár 5.1. introduction This essay will first describe justifications for freedom of speech. second , it will critically analyze the reasons presented for extending the scope of the eu’s Television without Frontiers directive by the audiovisual Media services (aVMs) directive. Third, it will explore whether the general, non-media-specific rationale—the protection of “core societal values”—provided for the extension of the scope of the Television without Frontiers directive is convincing, given that freedom of speech is undoubtedly one of the core values of our european tradition, and taking the constitutional treatment of hate speech in Hungary as an example . Finally, this essay will conclude that the aVMs directive poses certain limitations to freedom of speech without providing justification for doing so, and it should be re-examined by the eu and the Council of europe. it has to be emphasized that this essay aims only to scrutinize the aVMs directive from the perspective of freedom of speech, with particular attention to freedom of political speech, the openness of public discourse as a precondition for democracy, and the anti-incitement-tohatred provision of the directive, as the part of the extended regulation that can be abused to suppress dissenting voices. 5.2. Justifications for freedom of speech First of all, if a state or a group of states wants to propose regulatory limits, the respective state or group of states has to make its case that the limitations are justified under the necessity and proportionality i4 Beata book.indb 77 2010.05.09. 10:22 78 Media Freedom and Pluralism tests elaborated by both national and international courts. in the absence of such justification, freedom of speech has to be respected. The First amendment of the u.s. Constitution sounds like an absolute prohibition on restricting freedom of speech: “Congress shall make no law […] abridging the freedom of speech, or of the press.” But the sophisticated interpretations developed in american jurisprudence recognize justifiable limitations on the right to freely communicate information and ideas. still, the fact that there are no reasons listed in the u.s. Constitution for limiting freedom of speech or freedom of the press provides an opportunity for stronger arguments against restrictions. like all other international documents, article 10 of the european Convention on Human rights states that “everyone has the right to freedom of expression” (Council of europe, 1950, article 10.1). at the same time it lists reasons why this right can be restricted. according to its “necessity test,” the european Court of Human rights makes its judgments after deciding whether the restriction on freedom of expression in a member state of the european Council was based on a rule prescribed by law, falls under one of the reasons listed in paragraph (2) of article 10, whether it is “necessary in a democratic society” (Council of europe, article 10.2), and whether it is proportionate with its intended purpose. even if article 10 of the european Convention on Human rights provides more room for limiting freedom of speech than the First amendment in the u.s. Constitution does, the eCHr also makes it clear that limiting freedom of speech has to meet strict constitutional measures. There are many eloquently expressed rationales for freedom of speech to be respected by governments and international organizations . Below i list just a few examples, including some of the most often -mentioned justifications for freedom of expression. The extension of the scope of the Television without Frontiers directive by the aVMs directive has to be considered in the light of the arguments for freedom of speech. 5.2.1. search for truth1 and the marketplace of ideas John stuart Mill (1859, 1978) argued that in the search for truth, even the free expression of wrong opinions is highly valuable for humanity: i4 Beata book.indb 78 2010.05.09. 10:22 A Failure in Limiting Restrictions on Freedom of Speech 79 “[…] the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation ; those who dissent from the opinion, still more than those who hold it. if the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great...