Abstract
This article explores the conditions for public authorities' intervention in the exercise of freedom of expression, a fundamental freedom, while ensuring its free exercise as a human right and avoiding abuse. It delves into the modalities of state intervention, the creation of a public space for free discussion, and the material limits of freedom of expression due to the protection of public order and others' freedoms.
Extract
[...] This work is far from easy and is strictly framed in terms of proportionality. For example, the European Convention on Human Rights, regulates the intervention of the State in the exercise of freedom of expression, in its article 10. Therefore, if it is necessary for the well-being of other individuals and public order to set limits on the use of freedom of expression in order to prevent it from becoming abusive and harming others, how should the State proceed to such a limitation so that it is proportionate and balanced? [...]
[...] We also link the question of limiting freedom of expression to the duty of reserve of public agents and the prohibition of offending public morals. For the first, being representatives of the State, they have the obligation to limit their freedom of communication and to prove total neutrality in their statements. For the second, the offense of offending public morals has been replaced by the more general obligation to protect public morality, which was initially instituted by the Serre law of 1857. [...]
[...] The material limits of the use of freedom of expression due to the protection of others' freedoms It is in this sphere that we see the most divergences in terms of restriction of freedoms in different legal systems. If, for example, in Anglo-Saxon countries, the protection of private life is not ensured against the press, in French law there are many material limitations brought by the law to protect the freedoms of others. By the freedom to express oneself, orally or in writing, it is not possible to commit criminal offenses such as defamation or insult, to provoke discrimination, to incite hatred or violence, to harm the private life of others, to make an apology for crimes. [...]
[...] The Framing of Public Intervention in Matters of Freedom of Expression Article 10 of the European Convention on Human Rights sets out the conditions for public authorities' intervention in the exercise of freedom of expression, a fundamental freedom, in order to ensure its free exercise as a human right, while avoiding abuse. The principle stated in the first paragraph of this article is opposed by the exceptions provided in the second paragraph. These exceptions must be provided for by law, aim at one of the recognized legitimate purposes (such as national security, territorial integrity, public safety, defense of public order, prevention of criminal offenses, protection of health and morality, protection of others' rights, and safeguarding confidential information). [...]
[...] Article 14 of the law of July subjects publications intended for youth to limitations due to their content and places freedom of expression in this context in a preventive regime. As a result, these publications may be subject to limitations in dissemination or commercialization, by decree of the Minister of the Interior, if they present a danger to youth due to their licentious or pornographic nature or the place given to crime (?)». Finally, another preventive regime is provided in the audiovisual sector because the ordinance of March provided for a public monopoly of radio broadcasting in France, which included radio and television. [...]
