Many people—often proponents of undemocratic ideas and ideologies—invoke freedom of speech and the right to freely disseminate their ideas, even when publishing falsehoods, misinformation, or inciting hatred. Thankfully, since we are still in Europe—which, among other things, has given us the tradition of the rule of law (in plain terms: rules apply to everyone)—we have a solid foundation to rely on. Freedom of speech is protected by the Constitution of the Slovak Republic and the European Convention on Human Rights. These principles are further elaborated and clarified in great detail through case law, where courts interpret these and other legal norms and explain their reasoning in specific decisions. In a rule-of-law system, this is how we determine where the limits of free speech lie—even on the Internet. *
What is freedom of speech, and why do we protect it?
Freedom of speech is a fundamental human and civil right. It is a human right because it is tied to human dignity—it is difficult for a person to live with dignity if they cannot express themselves through words, images, creations, appearance, etc. It is a civil right because it enables individuals to influence the society around them, providing the opportunity to disseminate and receive information and share opinions. For this reason, courts in democratic countries treat this right—and any limitations on it—with great respect. Without freedom of speech and the right to information, democracy cannot exist. It is possible to imagine a democracy that temporarily limits the right to life or privacy (e.g., in democracies engaged in active military conflict on their territory, such as Ukraine or Israel). However, no democracy can exist without freedom of speech and the right to information.
What limitations can freedom of speech have in a democratic society?
It is important to recognize that (almost) no human or civil right is without limits. Restrictions are usually explicitly stated in the relevant paragraphs of the Constitution or Convention. As a rule, any restriction must be enacted by law—not by just simple regulation, decree, or an official’s decision, but through a document approved by Parliament. Such restrictions are justified by a list of values that may conflict with the human right in question.
What democratic values can conflict with freedom of speech? According to our Constitution and the European Convention on Human Rights, these include:
Concerns of national security, territorial integrity, or public safety
(e.g., I cannot freely email a school claiming there is a bomb.)
Preventing disorder or crime
(e.g., I cannot incite violence against my fellow citizens on social networks.)
Protection of health or morals, or public order
(e.g., I cannot freely distribute pornography or recipes for making illicit drugs.)
Protecting the reputation or rights of others
(e.g., I cannot post my neighbors´ private photos without their permission.)
Preventing leaks of confidential information
(e.g., I cannot post photos of strategic Department of Defense facilities online.)
Preserving the authority and impartiality of the judiciary
(e.g., I cannot attempt to influence judicial proceedings through my actions or publications.)
While these values allow freedom of speech and access to information to be restricted in certain situations, they all come with caveats. For instance, there are cases where the publication of private information or images has been deemed acceptable, and others where it has not. The case of Julian Assange illustrates the dilemma of whether secret service material can be made public under certain circumstances. The key lies in balancing competing values in specific cases. Which is more important: the public’s interest in knowing the truth or the safety of intelligence informants? The privacy of an individual or the public interest in uncovering corruption?
The principle of necessity in democratic societies
Another critical principle is that any restriction of rights and freedoms must extend only as far as necessary in a democratic society. While this may seem like a formality, it is a significant consideration in practice. Both the European Court of Human Rights and Slovak courts have extensively discussed this aspect in their rulings.
For example: Is it necessary to punish someone for a comment, or is deleting the comment sufficient? If someone is offended, is an apology adequate, or must financial compensation also be paid? Is it appropriate to seek a ban on a newspaper or website that has committed a violation?
These are serious questions, and courts carefully examine the context of each case to reach a fair conclusion.
The reality is that freedom of speech is not unlimited, and this principle also applies to the digital space of the Internet.
Why do we need to regulate expression on the internet?
Courts dealing with infringements on freedom of expression on the Internet justify the special attention given to online media (e.g., news portals, games, social networks, discussion forums, and other online activities) for several key reasons:
Dizzying dissemination of information
Internet sources differ from traditional print newspapers in that the information or opinions published online can spread very quickly to an almost unlimited number of recipients. While newspapers and television broadcasts have limited reach in time and space, the Internet has no such boundaries. Harmful or dangerous information can therefore propagate at lightning speed.Preservation of information
Events reported in traditional newspapers or broadcasts might harm or compromise certain values for only a short period—until the print edition becomes outdated or the broadcast is forgotten. On the Internet, however, information is preserved for a much longer time and can often be retrieved even after it has been seemingly deleted from a website. This makes the potential damage much more enduring compared to traditional media.Lack of context
In cases of information shared personally or broadcast through traditional media, context is usually taken into account when considering restrictions on freedom of expression. Factors such as the situation in which the information was published, the purpose behind its creation, the platform where it was shared, the time of its broadcast, the event it accompanied, or the broader societal circumstances are all examined. On the Internet, however, information is often disseminated without context and can easily be altered with the help of artificial intelligence. This makes manipulation far more likely and significantly increases the associated risks.
What are the rules of democratic free online debate?
If we carefully read the decisions of the European Court of Human Rights and Slovak courts, we can identify several principles that clarify how freedom of speech functions on the Internet. Case law continues to evolve, reflecting not only the development of new technologies but also shifts in societal discourse. When the European Court of Human Rights was established in the 1950s, its judges could hardly have foreseen streaming services, email communication, or the specific restrictions these might require in a democratic society. Yet, many older rulings remain relevant today and provide valuable insights. So, what principles apply now? Here are a few key guidelines:
Responsibility for internet discussions lies with the host
The Via Iuris publication highlights several court decisions addressing liability for hateful comments in online debates. Naturally, individuals are responsible for their own statements. If those statements constitute a criminal offense, such as incitement to violence against specific individuals or groups, the authors can be tracked down by investigative authorities and punished in court.
But what happens if someone manages a platform or publishes an article where users in online discussions insult others, damage reputations, or share dangerous information? Are the hosts truly not accountable for what their readers post under a blog or on a website? The answer is no—hosts are responsible for their guests’ behavior. Numerous court rulings confirm that legal or natural persons can be punished if statements made in their online space contradict democratic values. This responsibility implies an obligation to moderate discussions, delete harmful posts, and report dangerous content. Depending on the
platform, the responsibility may rest with the site operator or the author of a specific post, depending on who has ultimate control over the content.
A public figure must bear criticism
This is one of the longest-standing principles in European case law. Initially, it meant that politicians and high-ranking public officials enjoyed less privacy protection than ordinary citizens. The public has a right to access private information about individuals running for office if it helps evaluate their fitness for public service. Consequently, those seeking public office must expect scrutiny of their private lives.
However, this principle is not unlimited. Courts consider the degree of necessity in a democratic society. For instance, it is generally impermissible to publish arbitrary information about politicians' minor children. Over time, courts have extended this principle beyond constitutional officials. Police officers, clergy members, celebrities, and other public figures are now expected to tolerate a higher level of criticism than ordinary citizens. Individuals with significant influence over public opinion must anticipate criticism they may find unpleasant, including irony, satire, or vulgar humor. In Europe, the powerful are held to account first; respect comes second.
A popular person has more responsibility
This principle builds on the first and relates directly to the internet. The logic is that people or accounts with a large reach on the Internet have a greater responsibility to society, and thus what they say and how they say things is under greater scrutiny. If things were functioning as they should in Slovakia, incitement to violence against vaccinating doctors would be punished most severely by a popular politician (a government official with a lot of influence), somewhat less severely by a famous influencer (a private person with a lot of influence), and least severely by an ordinary citizen with a private Instagram account with 300 followers.
Necessary in a democratic society
I have already mentioned this principle above. When considering the clash of values and the degree of restriction of freedom, the degree of 'necessary in a democratic society' is always at the core. Different public interests are weighed (e.g., protecting young people from pornography vs. the freedom to conduct business online), and the extent to which we ban something or punish someone for making a statement should be proportionate. A number of rulings, particularly against Russia and Eastern European countries, have examined whether a fine imposed on an internet or other media outlet for defamation can be so high that it endangers the outlet’s existence, potentially forcing it to shut down. The answer is no. The tool for destroying free media through lawsuits, which Slovak politicians have so willingly used, has not been approved by the European Court of Human Rights.
Protecting views that are provocative and stir up trouble
One of the beautiful though not always pleasant, principles of freedom of speech has been repeated in European Court rulings since 1976: 'Freedom of expression does not only protect pleasant, favorable or neutral expressions and information. It also protects speech that offends, shocks or disturbs, both individuals, groups and the State… Such an approach follows from the requirement of pluralism, tolerance and openness, without which there is no democratic society.’ ** This gives a beautiful space to discuss tolerance and democratic values. It makes no sense to protect, by constitution or international convention, ideas that the majority like and almost everyone agrees with. Democracy, as we know it in Europe, is indeed based on majority rule, but with respect for the rights and views of minorities.
However, there may again be situations that are ambiguous. For example, if a well-known doctor and nutrition adviser questions vaccination during a pandemic when the health system is under strain and a state of emergency has been declared, is it legitimate to prohibit him from spreading these ideas? What is the higher value in a democracy; the right to question, even without expertise, or the protection of public health as provided by the state, which is responsible for saving the lives of those infected? What represents the higher public interest in this situation?
The author's intention and the social context matter
This is a crucial principle when assessing the limits of freedom of expression and the dissemination of information and opinions on the Internet. If two people do the same thing, it may not be considered the same act. In every case, courts examine the context in which a statement, image, or video was shared and the author’s intent behind it. While it is sometimes difficult to determine the true intentions of a person making the post, understanding their goal is essential in assessing the appropriateness of the content.
Thus, if neo-Nazism is discussed in an evening intellectual television program and representatives of these movements and their statements are given space, with the context clearly showing the editors' disagreement, this does not constitute the promotion of Nazism, as the European Court has determined.*** However, if the program wandered through social networks without context, its content and the statements mentioned could serve a completely different purpose, including promoting neo-Nazi ideologies.
There is a difference between a private individual, out of fear, spreading a hoax among his friends about conscription commissions drafting Slovak men for war against Russia, and a situation when this information is prepared by a disinformation portal. If there is a clear aim to undermine confidence in a politician or in state institutions in general, and this portal is financed by a country that is the aggressor in a war conflict, there is a different level of social danger of the act in question.
The Internet and the artificial intelligence tools available to virtually everyone provide immensely powerful tools to create and disseminate content, often edited or reshaped for various purposes. As we debate whether the Internet should serve as the 'Eldorado of free speech,' we must revisit the essence of human and civil rights and freedoms in a democratic society. Freedom of speech and the right to information are fundamental pillars of democracy, but they must not be used to destroy it.
*This article includes several simplifications made to enhance clarity. For a more detailed and expert discussion on the subject, including precise wording and references to case law, please refer to the publication by Via Iuris available here. This article relies significantly on insights from that publication.
** Quoted from Frontiers of Freedom of Expression on the Internet 2022, p. 18.
*** ECHR decision Jersild v Denmark 1994
Author: Zuza Fialová, a sociologist with a decade of experience in the field of international human rights protection.
Background illustration: myboys.me
This piece was published in partnership with PDCS - Partners for Democratic Change Slovakia
You can also read this article in Slovak here!
✅ Be resilient to disinformation! Take our free, self-paced course on Countering Disinformation:
