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European standards on limitations of freedom of speech

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Novytska N.B. (PhD in Law, Senior Researcher, Assistant Professor in Civil Law Department in National University of State Tax Service of Ukraine)

Abstract. Profoundly analyzed documents of Council of Europe (declarations, recommendations, conventions) on freedom of speech limitation in order to protect public morality and analyzed their implementation in the legislation of Ukraine. It is determined the ways of strengthening of the legal standards of the European Union’s freedom of speech limitation in the Ukrainian information space.

Keywords: freedom of speech, public morality, national interests, the Council of Europe, the European Union.

Today it is made the clear determination of Ukrainian foreign policy and, consequently, measured progress of our country in entering to the European institutions, the issue of compliance priorities and values of the EU rose almost in each area of public life. Our country began to be guided by the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), which is not only one of the most popular documents in Europe, but also the most effective instrument of human rights protection in the world.

One of the main problems that prevent the entry of Ukraine into the European space is the improper fulfillment of obligations to the Council of Europe in implementation of human rights on information.

Among the fundamental studies that analyze the European standards and norms of state regulation of information sphere it is worth to mention the works of such researchers as M. Litwin, V. Pavlik, I. Pryphan, V. Lipkan, I. Sopilko, A. Novytskyi.
Particularly noteworthy work of V.V. Kostytskyi reveals the problems of legal regulation of public morality protection in Ukraine and abroad, and also analyzes the implementation practice of legal acts on the protection of public morality and argue the thesis that protection of public morality is a function of a modern democratic state [1].

However, mentioned researchers examined this issue one-sided among raising the question of freedom of speech, freedom of journalism it is not paid attention to the rights of citizens on secure information environment, on protection of the person from information products that harms public morality.

It should be noted that the right to freedom of speech emerged as a tool to form person’s self-realization and his self-awareness. Liberal thinkers, starting with J.J. Rousseau noted the importance of learning the culture of speech. From the cultural point of view, freedom of speech is close to independent human self-formulating of its own goals and beliefs. People should have not only the freedom of judgments but also use it for careful selection. This is especially true of politicians that shape the future strategy of the state and they must possess not only the culture of the speech, but also the culture of thoughts that must be formed by human consciousness [2].

From a legal point of view, the constitutional right of everyone to freedom of speech and free expression of views and beliefs is the ability of each individual to determine personal system of moral, cultural and other values without any ideological or other control on publishing of your thoughts using any means of their expression, including the dissemination of information in the form of opinions and convictions on various issues of political, economic, cultural and religious life of society and state [3, p. 64-71].

Today understanding of freedom of speech in the theory of constitutional law has changed. In particular, the majority of local lawyers include freedom of speech to civil rights and don’t treat as the sole political possibility citizen. [3, p. 64].

Freedom of speech should be distinguished from permissiveness that received its ideological justification in the philosophy of anarchism. The sign of permissiveness is the lack of priority of national interests in social consciousness. Such society is not protected from the destructive effects of communication. As a result, it is controlled from the outside, resulting in the absence of an independent policy and this communication dependence is the result of economic and political dependence [4, p.98].

The right on the freedom of speech is part of information security. In turn, the information security system of any country is an integral part of the overall national security system [5, p. 725]. That is, providing the right on freedom of speech in the Constitution of Ukraine for anyone, in cases determined by law it can be limited in the national interests and, in general, it refers to information that promotes war, national or religious hatred; changing constitutional order or territorial integrity of Ukraine by violence; promoting fascism and neo-fascism; humiliating or insulting a nation or individual on a national basis; promotes religious hatred, blasphemy, contempt of ethnic and religious shrines; demeans the person, is a reason of bullying on disability (injury), with the mentally ill, the elderly; promotes ignorance, disrespect to parents; promotes drug addiction, substance abuse, alcoholism, smoking and other bad habits – are all that threatens public morality and forbidden to spread [6].
This rule is not new only in Ukrainian legislation.

One of the important documents, where emphasis was placed on the human and civil rights, among which is freedom of speech, was declared and approved in the 1948 Universal Declaration of Human Rights [7]. As for the restrictions of freedom of speech, the stated document contains only general rule in Article 29 emphasizes that during carrying of their rights and freedoms, everyone must be subject only to limitations prescribed by law solely for the purpose of securing the recognition and respect to the rights and freedoms of others and to justify requirements of morality, public order and the general welfare in a democratic society.

In 1966 the United Nations adopted the International Covenant on Civil and Political Rights, which is the basic international legal instrument in the field of international human rights and freedoms. Article 19 proclaimed the right of everyone on freedom of expression of its mind; this right includes freedom to search, receive and spread information and ideas, regardless of frontiers, either orally, in writing or in print, or form of art, or other media of his choice, however, the use of these rights carries special duties and responsibilities. Also clearly defined restrictions on freedom of speech, respect for the rights or reputation of others; to protect public safety, order, health or morality. It should be noted that the International Covenant established the prohibition of war propaganda, advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. [8]

The right to information – a fundamental right, which has great importance in the practice of the European Commission and the European Court of Human Rights; it is stated in Article 10 of the European Convention on Human Rights; and recognized under Article 9 of the European Convention on Cross-Border Television, as well as in all democratic constitutions. The owner of the right is the citizen, who also has the right to demand that the information it receives conveyed truthfully in the case of communications and honest when it comes to reasoning. The implementation of this law, in accordance with Article 10 of the European Convention on Human Rights with 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 morality, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary. [9]

Implementing their constitutional right on freedom of speech person, even without a special goal, may violate the right of others and cause them pecuniary damage. This is most clearly illustrated in the coverage of emergency situations when news reports are made and shows the real picture of the mutilated bodies, the brutal murders and so on which as proven by scientists have negative impact on children and infants. Of course, the producers of information products are entitled and obliged to inform the public about current events in society, but material won’t lose its informative value without scenes that can cause moral harm to other citizens, especially children.

The 70th Session of the Council of Europe adopted a Declaration of Principles on Freedom of Expression [10] in which freedom of expression and information identified as fundamental element of the principles of true democracy, rule of law and respect for human rights. Also noted as positive that in addition to the statutory measures from paragraph 2 of Article 10 of the European Convention on Human Rights professional organizations in the field of media should voluntarily develop and implement codes of ethics. Noted that despite the relatively wide range of tasks in this Declaration its almost no attention paid to the protection from information products that may harm public morality.

In 1984, the Council of Europe adopts Recommendation № R (84) 3 on principles of television advertising [11] which defines the general principle of preparation of advertising – a sense of responsibility to society, paying particular attention to the moral values that are the foundation of every democratic society and are common to all Member States. Also determined that additional attention should be paid to possible harmful consequences that may arise after the advertising of tobacco, alcohol, pharmaceutical drugs and medical treatment and the possibility to restrict or even prohibit advertising in these areas. Specific requirements are found for the content of advertising that is aimed at children or advertising, which involves children. In particular, it should avoid anything that could harm the interests of the children to respect their physical, mental and moral personality.

Attention is drawn to the fact that the Council of Europe does not leave aside the need to prepare the human to perception of information and proposes in Recommendations to the cultural dimension of broadcasting in Europe to introduce school courses of critical attitude towards the media and audiovisual production and to inform adults (not just parents) on developments in the media as positive and those that could harm the moral health of society. Also herein was recommended to speed up and intensify efforts to develop guidelines based on national legislation and aimed at reducing violence, brutality and pornography not only in videos, but also in the field of broadcasting.

Despite their commitment to freedom of speech and the free flow of information and ideas, that was particularly emphasized in the Declaration of 29 April 1982, Council of Europe adopts Recommendation No.R(89)7 concerning principles on the distribution of videograms having a violent, brutal or pornographic content [12] whose objective was to consolidate action against the spread of video with violent, brutal and pornographic content, as well as against drug use. Another feature of this legal act is that Member States should encourage the creation of classification and control systems of videos by the professional sectors within the self-regulation framework or through public authorities.

The main source of information for citizens is the media. Basically through the media it is shaped the public opinion about certain events or facts so citizens have the right to demand that the information supplied by journalists must be conveyed truthfully, in the case of news, and honestly, when it comes to reasoning. Therefore, the Council of Europe is not left out of the attention the media and holds regular Ministerial Conference on Mass Media Policy, constantly emphasizing that freedom of speech, including freedom of the media, is one of the most important principles of true democratic society and each time emphasizing the inadmissibility of abuse of freedom of speech and establishing certain reservations and restrictions to freedom of speech.

In 1993, a resolution was adopted the Resolution on the ethics of journalism [13] which noted that journalists have a moral responsibility to citizens and society, so the media must commit themselves to submit ethical principles guaranteeing the freedom of speech and the fundamental rights of citizens to receive truthful information and honest opinions. Also the media have a moral obligation – to protect democratic values, to respect the human dignity, to promote solving problems by peaceful, tolerant ways and, therefore, to oppose violence and to reject all forms of discrimination based on culture, gender or religion. For Ukraine is quite interesting the norm about the establishment of institutions of self-regulated mechanisms that must unite publishers, journalists, media users associations, experts from the academic world and judges in order to monitor the observance of compliance of journalism ethic principles. It is their responsibility to issuing resolutions on respect for ethical principles in journalism, with prior commitment of the media to publish the relevant resolutions. This will help the citizen who has the right for information to pass either positive or negative judgment on the journalist’s work and level of credibility to such work.

In 1994 was held the fourth European Ministerial Conference of Ministers on Mass Media Policy „Media in a democratic society”, where was approved the Resolution No. 2: Journalistic Freedoms and Human Rights. One of the declared principles is the principle of non-contribution to any violence, hatred, intolerance or discrimination based, in particular, on the race, gender, sexual orientation, language, religion, politics or other opinion, national, religious or social origin.

Particularly interesting, in the study of freedom of speech limitations to protect public morality, is Recommendation 1276 (1995) on the power of visual image [14]. In particular, the Council of Europe recognized that visual imagery wave so powerful that we are now faced with the phenomenon of „virtual reality”, which creates the risk of manipulation of images that illustrate the news and information that accompanies them.

Unlike other resolutions adopted by the Council of Europe on freedom of speech in this clear and even tough stated that freedom of expression – a fundamental right secured by Article 10 of the European Convention on Human Rights – should be provided together with the responsibilities with which it is associated. In certain cases, restrictions on freedom of expression can be justified to make it compliant with the need to protect other rights and freedoms, including the rights of children.
The Assembly also called the Committee of Ministers to check the implementation of measures against the portrayal of violence on television (in close cooperation with broadcasters) and education activities in the field of media awareness. Most of these requirements are extremely important but unfortunately not met in Ukraine.

So, twenty years ago the Council of Europe raised the question of mind manipulation that is so important for modern Ukraine, and recognized the seriousness of the threat to the moral health of society by imposing visual images.

Globalization processes in the information sector, increasing the number of electronic media led to the adoption of the Council of Europe Recommendation № R (97) 19 on the portrayal of violence in the electronic media [15]. Recommendation concerns the gratuitous portrayal of violence in the various electronic media at national and international levels.

Members of the Council of Europe expressed the belief that further development of information and communication technology should serve, regardless of frontiers, to express, to seek, to receive and to impart information and ideas regardless of their source and had approved the European Convention on Cross-Border Television [16]. Although this convention concerned with program services embodied in transmissions, and its purpose is to facilitate the cross-border transmission and retransmission of television program services, it contains a clear requirement for broadcasters, which restricts freedom of expression standards to protect public morality.

Till last years the Internet could not be considered as a public media such as traditional radio, television or print media. However, now online journalism has become an essential part of the information industry in the world, and online media – an influential source of information for users. In 2011, the United Nations (UN) added a right of access to the Internet into the list of inalienable individual rights. Unreasonable deprivation or limitation of the right to seek, receive and impart information through a network is a violation of this right [17].
Declaration on freedom of communication on the Internet establishes a set of principles which must be committed by Member States to support the efforts of the service providers in cooperation with law enforcement agencies when faced with illegal content in the Internet.

Ukrainian society today is suffering from the effects of poor quality and harmful information being disseminated and interpreted under the freedom of speech. Media influences on everyday life both of society and of every citizen separately. Today the media impose standards of living, constantly giving some guidance in determination what is bad and what is good. The level of criticism f Ukrainian citizens is too low and the level of responsibility of the media is absent at all.

Ukraine should focus on international documents of the European Union, which require us to take care of information security of infants. Art. 22 of EU Directive „Television without Frontiers” imposes country to create a national body that will guarantee the protection of infants from abuse of freedom of the media. If Ukraine wants to join the European Union, we must also create such council [18, 19].

Undoubtedly, access to information is a prerequisite for democratic development. However, abuse of the right on freedom of information can lead to inefficiencies of the democratic system, namely it can be the cause of national insecurity, breach of the peace, non-controlled by public authorities, propaganda of violent change of government, incitement to national, regional, racial hatred, breaking the human right to privacy life and threat to its security. Therefore, every citizen should be responsible for use of right on freedom of speech and handle some limitations on this right.

Given fact that freedom of speech in Ukraine is protected by more than hundred of legal documents, local media have to uphold the professionalism and integrity of members of their journalistic „team”. To a large extent the development of public television, increasing the number of truly independent newspapers, magazines and online publications depends on it as an essential conditions to realize the right of person on full, objective and unbiased information, making it impossible to use the media in struggle for self-serving corporate interests, which reduces confidence in them as a source of reliable information.

However, the self-regulation in the industry is on the quite low level. Today its missing the consolidated position of the mass media on ethics and standards of relevance to even the hottest events in Ukraine. Freedom of speech should not allow the immoral free-thinking and the ability of public harassment of any manifestations of state social life. There should be limits of acceptable not only for ethical position, but also for the complex processes of state- and nation-building. We believe that in this case it is needed the legislative initiative that clearly define the relationship between the owners of the media, editorial staff and consumers of information.

Another important task for Ukraine is to educate adequate information consumer, the level of information culture of whom would allow him to oppose any manipulation and influences. This means that parallel with the reforms in the media, should be the introduced the media education in schools.

Literature:

1. Kostytskyi, V.V. Protection of public morality as function of modern state. Monograph. / V.V. Kostytskyi. – Drogobych: Kolo, 2013. 172p.
2. Nastechko, K.O. Right on Freedom of speech in context of Ukraine’s Eurointegration / K.O. Nastechko // European Studies and Law. – 2011. – 11p.
3. Constitutional rights, freedoms and obligations of person in Ukraine / ed. Shemshuchenko Y.S., member of NAS of Ukraine. – К. : Print House“Law Opinion”, 2008. – 252 p.
4. Volkov A.G. Political text and the freedom of speech / A.G. Volkov [Electronic source]. – Access: http://www.nbuv.gov.ua/Articles/KultNar/knp50_2/knp50t2_96-99.pdf
5. Zadvornyi A. Information security and freedom of speech in Ukraine / A. Zadvornyi / Freedom of speech in Ukraine: status, problems, perspectives : materials of examination in Parliament of Ukraine 10 April 1997 // Parliament of Ukraine ; Committee of legal support to freedom of speech and mass media / ed. E.I. Lukianenko. – К. : Parliament Print House, 1997. – 136 p.
6. On Protection of Public Morality [Text] : [Law of Ukraine : official text : on 20 November 2003]. – К. : News of Parliament of Ukraine, 2004. – № 14. – Art.192.
7. Universal Declaration of Human Rights [Text] : [Declaration : official translation : on 10.12.1948]. – Access : http://zakon4.rada.gov.ua/laws/show/995_015
8. International Covenant on Civil and Political Rights : on 16.12.1966 // Collection of regulations on protection of human rights / ed. Goncharenko S.F. – К. : Jurinkom Inter, 1995. – P. 38-44.
9. 1950 European Convention on Human Rights [Electronic source]. – Access : http://zakon4.rada.gov.ua/laws/show/995_004
10 Declaration of Principles on Freedom of Expression [Text] : [Declaration : official text: on 29.04.1982]. [Electronic source]. – Access : http://zakon4.rada.gov.ua/laws/show/994_885
11. On principles of television advertising / Council of Europe Standarts on Media [law bulletin]. – К.: IREX U_Media – 2005. – 88p.
12. Principles on the distribution of videograms having a violent, brutal or pornographic content / Council of Europe Standarts on Media [law bulletin]. – К. IREX U_Media – 2005. – 88p.
13. The Resolution on the ethics of journalism / Council of Europe Standarts on Media [law bulletin]. – К. IREX U_Media – 2005. – 88p.
14. Recommendation 1276 (1995) on the power of visual image / Council of Europe Standarts on Media [law bulletin]. – К. IREX U_Media – 2005. – 88p.
15. Recommendation № R (97) 19 on the portrayal of violence in the electronic media / Council of Europe Standarts on Media [law bulletin]. – К. IREX U_Media – 2005. – 88p.
16. European Convention on Cross-Border Television [Text] : [Convention : official text: on 17.12.2008]. [Electronic source]. – Access: http://zakon1.rada.gov.ua/laws/show/994_444
17. Bocharova N.V. Modern tendencies of legal development of EU countries in field of copyright / N.V Bocharova // Comparative and Analytical Law. – 2013. – №3-1. – P. 19
18. Kunytskyi V.V. Protection of infants in information space as object of humanitarian expertise: Ukrainian and foreign experience [Electronic source]/ V.V. Kunytskyi // Access : www.academy.gov.ua/ej/ej14/txts/Kunitskiy.pdf
19. Kuznetsova O. Legal protection of infants from harmful influence of mass media in Ukraine and abroad [Electronic source] /O. Kuznetsova// – Access : http://goo.gl/NEDJFG

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