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(CDDH) ___Guide to Good and Promising Practices on the Way Of CDDH(2019)R91Addendum6 02/08/2019 STEERING COMMITTEE FOR HUMAN RIGHTS (CDDH) _______ Guide to good and promising practices on the way of reconciling freedom of expression with other rights and freedoms, in particular in culturally diverse societies ______ adopted by the CDDH at its 91st meeting (18–21 June 2019) CDDH(2019)R91Addendum6 Table of contents I. BACKGROUND ........................................................................................................................... 5 II. INTRODUCTION .......................................................................................................................... 6 III. SCOPE AND CONTENT OF THE RIGHT TO FREEDOM OF EXPRESSION ........................... 8 A. Protection of freedom of expression ......................................................................................... 8 International and regional levels ..................................................................................................... 8 National level .................................................................................................................................. 9 Article 10 of the ECHR ................................................................................................................. 10 Scope ........................................................................................................................... 10 Permissible limitations .................................................................................................. 11 States’ obligations ........................................................................................................ 13 Access to information online and offline ...................................................................... 14 B. Specific actors and their relation to freedom of expression ................................................. 17 Media ............................................................................................................................ 17 Civil society actors ....................................................................................................... 21 Internet intermediaries ................................................................................................. 22 i. Specific focus area: Freedom of expression in political discourse ............................................ 25 Freedom of political debate .......................................................................................... 25 Responsibility of political leaders and political parties ................................................. 26 Measures to combat political statements that incite to violence or hatred .................. 28 a. Self-regulation ......................................................................................................... 28 b. Withdrawal of public financial and other forms of support ...................................... 31 c. Prohibition and dissolution of political parties and organisations in exceptional cases ...................................................................................................................... 32 Higher degree of tolerance of criticism towards politicians .......................................... 34 ii. Specific focus area: Information disorder (“fake news”) .......................................................... 36 Regulations at national level ........................................................................................ 38 Multi-dimensional approach ......................................................................................... 40 Fact-checking and trust-enhancing initiatives .............................................................. 41 Promoting media pluralism and diversity ..................................................................... 44 Awareness-raising and media literacy ......................................................................... 46 Coordinated responses and continued research ......................................................... 49 IV. Specific focus area: HATE SPEECH ..................................................................................... 51 The challenge of defining ‘hate speech’ ....................................................................... 51 Developing comprehensive national strategies ........................................................... 53 Enacting legislation in accordance with international and regional obligations ........... 56 Strengthening the prosecution of hate speech offences .............................................. 61 Self-regulation by public and private institutions .......................................................... 64 Increasing the reporting of hate speech ....................................................................... 66 Supporting victims of hate speech ............................................................................... 69 Enhancing research and monitoring, including data collection .................................... 69 Education and awareness-raising, including intercultural dialogue ............................. 71 Dialogue with media at large including social media platforms, civil society and other relevant actors .............................................................................................................. 74 Counter-speech ............................................................................................................ 77 2 CDDH(2019)R91Addendum6 V. FREEDOM OF EXPRESSION IN RELATION TO SPECIFIC OTHER HUMAN RIGHTS ........ 77 A. Freedom of expression and right to private life ........................................................................... 78 B. Freedom of expression and freedom of thought, conscience and religion .............................. 81 Competing interests of freedom of expression and freedom of thought, conscience and religion ................................................................................................................... 82 Religious symbols in public areas ................................................................................ 83 Whistle-blowing ............................................................................................................ 85 Blasphemy, religious insult and incitement to religious hatred .................................... 88 C. Freedom of expression and freedom of assembly and association .......................................... 90 D. Freedom of expression and prohibition of discrimination ......................................................... 91 VI. CONCLUSIONS ......................................................................................................................... 95 Appendix to be included in the publication Analysis of the relevant jurisprudence of the European Court of Human Rights and other Council of Europe instruments to provide additional guidance on how to reconcile freedom of expression with other rights and freedoms, in particular in culturally diverse societies (adopted by the CDDH in June 2017) 3 CDDH(2019)R91Addendum6 Abbreviations and acronyms used in this guide CDDH Steering Committee for Human Rights CDMSI Steering Committee on Media and Information Society CERD Committee on the Elimination of Racial Discrimination ECHR or Convention European Convention on Human Rights ECRI European Commission against Racism and Intolerance ECtHR or Court European Court of Human Rights EU European Union FRA European Union Agency for Fundamental Rights ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of all Forms of Racial Discrimination NGOs Non-governmental organisations OSCE Organization for Security and Co-operation in Europe OSCE/ODIHR Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) PACE Parliamentary Assembly of the Council of Europe UN United Nations Venice Commission European Commission for Democracy through Law 4 CDDH(2019)R91Addendum6 I. BACKGROUND [1.] Freedom of expression is the foundation of open and inclusive societies as it promotes knowledge, exchange and mutual understanding in culturally diverse societies such as those in Europe today. On the other hand, the abuse or misuse of freedom of expression may pose a threat to democracy. Such a threat may also exist when this freedom is censored or silenced. [2.] As examples, the international controversy after a Danish newspaper published Muhammad cartoons on 30 September 2005 and the murder of Charlie Hebdo journalists committed in Paris on 7 January 2015 have highlighted challenges related to the implementation of freedom of expression in democratic societies. These events highlight the risk for the safety of journalists, at the same time showing the risk to democracy itself. They also highlight the questions regarding limits to freedom of expression in contemporary European societies. Due to the diversity of multicultural societies, the enjoyment of one’s freedoms seems more than ever to affect the freedom of others. [3.] The background for preparing the present Guide is the wish of the Committee of Ministers of the Council of Europe to provide member States with a practical tool on ways of reconciling freedom of expression with other human rights, in particular, the right to respect for private life, freedom of thought, conscience and religion, freedom of assembly and association
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