The right to freedom of expression: for ombudsman schemes

Freedom of expression is a human right. 

The right to freedom of expression is central to upholding other human rights and democracy.

Participation in democracy depends on free expression, sharing ideas, raising issues, organising and protesting.

Press freedom, in particular, helps ensure that human rights violations are reported and acted upon.

The right includes all forms of expression, as well as the right not to speak.

It protects shocking, disturbing or deeply offensive views, as long as they do not incite violence or hatred towards others (General Comment No. 34 2011 and Handyside v UK 1976, paragraph 49).

The right to receive and impart information is part of the right to freedom of expression. But complaints about freedom of information or lack of access to personal data are usually best referred to the Information Commissioner’s Office.

Individuals as well as organisations enjoy rights under Article 10 of the Human Rights Act. You may, therefore, receive complaints both from and about organisations within your jurisdiction.

You can read more about freedom of expression under Article 10 and in domestic law, including the role of public bodies and regulators, in our legal guidance document on freedom of expression.

• across public services
• any communications or restriction on communications in media, or in public buildings or spaces, including schools and hospitals
• employment
• politics

There is a negative obligation on the state not to interfere with this right – and it must justify any interference if it makes it.

A positive obligation also exists to protect the right, including from threat by third parties, such as private employers; and to enact adequate domestic legislation to protect freedom of expression and access to information ‘in the sphere of relations between individuals’. States must strike a fair balance between the interests of the community and the individual (Özgür Gündem v Turkey 2000).

Public services

Communications by organisations delivering services to the public should respect, protect and fulfil the human rights of all. Posters, pictures or banners, for example, which express opinions that make a certain group feel excluded, may prevent them from exercising their rights, even if they are not so severe as to incite hatred or violence.

If a restriction on such communications is made, however, the burden falls on the authority to demonstrate that doing so is lawful, necessary and proportionate for a legitimate aim. Assertions in justification that a group may feel excluded are unlikely to be enough.

Case study

• Restrictive practices in a care home

Employment

Social media and the internet have increased the ease of sharing opinions and information with others, and also increased the risks of reputational damage. Employers may seek to control the right of their staff to express themselves freely when the reputation of their organisation is at stake. Sometimes this extends to employees’ activities outside the workplace.

Disciplinary and social media policies should balance the rights of those affected and not unduly prohibit an employee’s right to freedom of expression, merely because the employer or other employees find certain views disagreeable (Smith v Trafford Housing Trust 2012).

Employers, however, have been able to justify interfering with an employee’s right to expression by demonstrating:

• the risk to their reputation
• a legitimate aim, such as protecting the rights and reputations of others
• necessity and proportionality

Civil servants and politicians

Certain types of employees, such as civil servants, may have extra duties and responsibilities which justify leaving authorities more room to decide whether interference is proportionate (Vogt v Germany 1995).

The job and public position of the person exercising the right to freedom of expression, as well as of the person receiving those views, can be considered by the courts. They have ruled that restrictions on highly critical comments about or between politicians, for example, are incompatible with the right (Lingens v Austria 1986).

What to do if this right is relevant to your case

You need to establish whether there has been an interference in the right, and balance the impact of the expression on the rights of other people.

When you establish the facts of an interference with the right, you will need to look closely at whether it was necessary and proportionate for achieving a legitimate aim.

An expressed opinion does not need to incite hatred or violence to exclude certain people or groups from exercising their rights or from using public services.

• Restrictive practices in a care home