Back to Index of Limits on Freedom of Expression

This report examines the scope of protection extended to freedom of speech in thirteen selected countries. In particular, the report focuses on the limits of protection that may apply to the right to interrupt or affect in any other way public speech. The report also addresses the availability of mechanisms to control foreign broadcasters working on behalf of foreign governments.

The report consists of individual surveys for the following countries: Argentina, Brazil, Canada, China, Israel, Japan, Germany, France, New Zealand, Sweden, the Netherlands, the United Kingdom, and Ukraine. The surveys were prepared by foreign law specialists and analysts at the Global Legal Research Directorate of the Law Library of Congress. Countries surveyed were selected from various continents based on relevance as well as on available staff’s expertise.

The terms “freedom of speech” and “freedom of expression” as used in this report are interchangeable. Quotations in this summary were taken from the relevant country surveys.

I.  Limits on Public Speech

All countries surveyed appear to expressly recognize the right to freedom of speech as a constitutional or fundamental right. Freedom of speech, however, is not absolute; all of the countries apply limitations to it at varied levels. 

A. Geopolitical Content Restrictions

Broad restrictions on speech were found in China and Ukraine.

Although the Chinese Constitution declares that citizens enjoy freedom of speech and freedom of the press, these freedoms are tightly restricted by specific laws and regulations. For example, China’s Cybersecurity Law prohibits the use of the internet to “endanger the sovereignty, overturn the socialist system, incite separatism, break national unity, advocate terrorism or extremism, advocate ethnic hatred and ethnic discrimination, . . . [and] create or disseminate false information to disrupt the economic or social order.” Similar prohibited expressions apply under China’s Regulation on the Administration of Publishing, including a prohibition on the destruction of “public order or . . . public stability.” Other restrictions apply under China’s Regulation on Radio and Television Administration, which prohibits endangerment of “state . . . honour and interests; . . . [as well as the instigation of] nationality separation or . . . [disruption of] nationality solidarity.”

Restrictions on speech in Ukraine may be viewed in the context of the Euromaidan Revolution in 2014 and conflict with the Russian Federation. In addition to censorship, Ukrainian law contains restrictions in the form of language quotas for broadcasting, print, and publishing media in languages other than Ukrainian. Accordingly, only 10% of the total screenings of films in Ukraine can be in a language other than Ukrainian, and at least 50% of books published and distributed in Ukraine must be in Ukrainian.  

Ukrainian legislation further authorizes the banning of “films containing the propaganda of an ‘aggressor state,’ including positive images of the workers of the aggressor state, Soviet state security bodies, and films justifying violation of the territorial integrity of Ukraine.” The ban applies to films produced by individuals and entities of the aggressor state, and to movies with the above mentioned content produced after August 1, 1991, regardless of country of origin.

The ban also applies to movies and films produced after January 1, 2014, by individuals or legal entities of the ‘aggressor state’ “in the absence of propaganda”. Restrictions also apply to the import and distribution of print media from the territory of the aggressor state.”

B. Specific Prohibitions on Disruption of Public Speech and Deliberations

Some surveyed countries were found to have specific rules prohibiting disruption of public speech and deliberations. For example, the Brazilian Internal Rules of the National Congress as well as the Internal Rules of the Chamber of Deputies and Federal Senate do not allow the interruption of parliamentarian speech. During the joint sessions of the Congress, the galleries are made available to the public. No manifestation of support or disapproval to what happens in the plenary or the practice of acts that can disturb the work is allowed. Similarly, all persons are allowed to attend the public sessions in the Federal Senate from a reserved seat provided that they are silent and give no sign of applause or disapproval of what happens there.

Japan specifically recognizes an offense of disruption of public speech for public election campaigns, an offense punishable by imprisonment or a fine.

Sweden prohibits noise disruptions of public gatherings such as religious services, marriages, funerals, court proceedings, state or municipal meetings, or public deliberations. For example, disruption caused by hecklers at the Swedish Parliament is punishable with a fine or imprisonment. Swedish law further prohibits disorderly conduct that is aimed at aggravating people. Heckling a political group, according to the Swedish country survey, is likely to fall within the constraints of this offense even if it does not specifically meet the requirements to be deemed disruption of public deliberations and gatherings.

Unreasonable disruption in a public place of “any meeting, congregation, or audience” is specifically prohibited under New Zealand law.

In addition to a general prohibition on acting in a disorderly manner at a public meeting in order to “prevent . . . the transaction of the business for which the meeting was called together,” the United Kingdom has specific provisions prohibiting incitement to disrupt meetings that are part of an electoral campaign during a campaign period.

C. Indirect Limitations on Public Speech

Limitations on the right of expression exist in all the surveyed countries and are recognized under the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Such limitations are designed to secure a variety of objectives that may include the protection of national security, territorial integrity, public safety, health, morals, the integrity of public service, a person’s dignity and good name, religious feelings, etc. Protection of these and additional objectives are provided under the countries’ constitutional provisions as well as under statutory and case law, as relevant.

Limitations on speech that might be relevant in the context of interruption of public speech such as heckling include prohibitions on disturbance of public order or safety, defamation, hate speech, insult and violation of human dignity in a number of the countries surveyed. A prohibition on disrespecting the French national anthem or the French flag has been highlighted as a recognized limitation on speech under French law.

Germany, Israel, and the Netherlands specifically recognize limits on speech that constitutes a denial or praise for atrocities committed during the Holocaust, with German law prohibiting disturbance of “the public peace in a manner that violates the dignity of the victims [of the Nazi regime] by approving of, glorifying, or justifying the National Socialist rule of arbitrary force.”  In France the denial or minimization of recognized crimes against humanity, in particular the Holocaust, are considered prohibited hate speech.

Other types of restrictions that may affect public speech apply to limits “based on political, religious, cultural or other beliefs in Sweden, incitement to religious hatred and discrimination in the Netherlands, and insults to religious feelings in Israel.

The implementation of limits on speech in many countries is interpreted in a restrictive way, however, especially with regard to public speech. Recognizing the importance of free expression in democratic societies, the European Court of Human Rights has declared that freedom of speech “is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”

The courts in Canada, France, Germany, and Israel have similarly extended the scope of free speech protection to harsh and exaggerated statements, as well as to political expressions that may not please the government. Protection of speech, however, does not apply in the same way to the deliberate assertion of untrue facts.

D. Balancing the Right to Free Speech against Other Protected Rights

Recognizing the importance of protecting freedom of speech, the European Convention on Human Rights provides that any limitation of freedom of expression must be prescribed by law, “necessary in a democratic society,” and aimed at certain enumerated objectives, one of which could be the prevention of disorder or crime. A determination as to whether a restriction on freedom of expression is necessary “requires the existence of a pressing social need, and . . . the restrictions should be no more than is proportionate.” Feelings or even outrage, in the absence of intimidation, however, was held by the European Court of Human Rights as insufficient for limiting freedom of expression: “To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.” 

A similar approach is expressed by the International Covenant on Civil and Political Rights, which recognizes that freedom of expression may only be restricted as provided by law and to the extent necessary: “(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order… or of public health or morals.”

The need to interpret limitations on freedom of expression restrictively has been recognized by the Argentinian Supreme Court. A narrow interpretation of the scope of limitations on speech was similarly applied by the New Zealand Supreme Court. One of the justices defined prohibited “offensive behavior” within the meaning of that country’s law as behavior “capable of wounding feelings or arousing real anger, resentment, disgust or outrage, objectively assessed, provided that it is to an extent which impacts on public order and is more than those subjected to it should have to tolerate.” In determining whether the limitation on freedom of expression is justified, a balancing of the conflicting interests must be undertaken, the Court held.

Attempting to find a balance between freedom of speech and the prohibitions against defamation and insult, French law determines that publication of a true statement that concerns a person’s private life may nonetheless be defamatory for the purpose of criminal liability.

An expansive protection of publication of even false information has been recognized by the Israeli Supreme Court based on a “defense of responsible journalism.” This defense applies in defamation suits where the publication was made in good faith, even if the information it contained ultimately turned out to be false. The defense is restricted to cases where there was an obligation to publish; no malicious intent; the publication complied with standards of responsible, cautious, and fair journalism; and the publisher took steps to prevent unnecessary harm to the object of the publication.

French law similarly exempts good-faith reporting of parliamentary or judicial proceedings from prosecution for defamation. The French Cour de cassation has declared that criticism of the manner in which institutions function is a valid exercise of freedom of expression. Nevertheless, the country survey for France notes that defamation prosecutions do occur in France and are often difficult to defend against. 

Interpreting the wide scope of protection that should apply to political expression in Israel, that country’s Supreme Court has narrowly interpreted the elements of the offense of insult to a public servant under Israel’s criminal law. The Court held that the prohibition would apply only in rare cases where the expression “harm[s] the core of human dignity and involve[s] a substantive and severe violation of the value-moral nucleus from which the public servant draws the source of his/her power and authority. “The prohibition was similarly held to be applicable only where it is almost certain that the anticipated harm will harm the public employee as an individual as well as the public service system and the public’s trust in it.

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II. Mechanism to Control Foreign Broadcasters Working on Behalf of Foreign Governments

The issuance of foreign correspondent’s certificates to foreign journalists is common among the countries surveyed. A number of countries similarly require licensing for radio and television broadcasting operations. Licensing in some countries surveyed requires legal residence or registration, or a commitment to adhere to broadcasting standards.

A. Rules Specific to Broadcasters Controlled by Foreign States

Under French legislation adopted in December 2018 the French regulatory agency for radio and television broadcasting may, after a first warning, withdraw the broadcasting authorization of an operator controlled by or under the influence of a foreign state if that state broadcasts content that harms a fundamental national interest of France. The law explicitly states that the propagation of false information to interfere with the proper functioning of institutions should be considered harmful to a fundamental national interest. 

Explicit blockage of access to Russian media and social networks, as well as search engines and electronic mail services and domains, was implemented in 2017 in Ukraine based on a presidential order. The same order also blocked individual journalists or broadcasters (foreign and domestic) who were deemed to be a threat to national security.

B. Broadcasting Pluralism Standards

The French regulatory agency for radio and television applies criteria for granting broadcasting permits that include, in addition to technical considerations, the promotion of “the public interest and the respect of pluralism.” Although the agency does not practice censorship prior to broadcasting, it may apply sanctions after broadcasting if a program violates French law.

Foreign broadcasters operating in the United Kingdom and broadcasting to UK audiences must similarly be licensed by the UK’s communication regulator, Ofcom. In order to obtain a license, the broadcaster must agree to the license conditions and to comply with the Broadcasting Code. Among broadcasting standards to which licensees must commit in the UK is the requirement that, in dealing with matters of major political and industrial controversy and matters relating to current public policy, an appropriately wide range of significant views (respect for pluralism) must be included and given due weight in each program. Failing to abide by the license’s conditions or the Code and laws may result in Ofcom issuing its findings publicly, imposing a financial penalty, or suspending or revoking the broadcaster’s license in the UK. 

A violation of the requirement of respect for pluralism resulted in the closing of an Iranian-funded television channel held by Ofcom to have failed to air alternative viewpoints on controversial issues in one case. The broadcasting of a news item with a two-minute video filmed by a terrorist prior to him conducting a terrorist attack resulted in a fine for the broadcast channel, which originated in Afghanistan but broadcast in the UK. According to Ofcom, “the programme contained hate speech and was likely to encourage or to incite the commission of crime or to lead to disorder . . . with no surrounding content that sought to challenge, rebut or otherwise contextualise . . . highly extreme views.”  

The investigation of a TV channel that is financed by the Russian Federation and determined by Ofcom to have been controlled by the Russian government is ongoing in connection with an influx of programs broadcast on the channel after the poisoning of two Russian nationals in the UK. 

C. Requirements Regarding Broadcasters’ National Identity or Financial Backing

Foreign media organizations operating in China must seek approval from China’s Ministry of Foreign Affairs and submit required documents in order to establish offices in China and send resident journalists to the country. 

The Netherlands limits the participation of foreign broadcasters by applying quotas for European and Dutch-Frisian programming of public and private broadcasters, thereby excluding or limiting the participation of foreign, non-EU broadcasters.

Residence or seat requirements in Germany, in another EU Member State, or another Member State of the European Economic Area (EEA) apply to private broadcasters in Germany. A license will not be granted to legal persons under public law or to entities that are government funded. This prohibition also applies to foreign public or state institutions. The German Commission on Licensing and Supervision reportedly revoked the radio license of a broadcasting company because it allegedly uses too much content that is financed by the Russian government, thereby making it a de facto state organization.

Under Israeli law, television and radio broadcasters are required to have a license. License applicants must, among other requirements, be a corporation registered in Israel. The Law requires that a certain percentage of the means of control to direct the corporation’s operation be held by Israeli citizens and residents of Israel, or by registered corporations in Israel. Applicants may be disqualified based on a determination that granting them a license is contrary to the public interest or constitutes a risk to state security. Broadcasters must disclose any foreign contributions received from “foreign political entities” as defined by law.

It should be noted that some surveyed countries have expressed concerns for foreign broadcasting activities. With regard to Russian Television (RT), the Canadian Radio-television and Telecommunications Commission (CRTC) recently commented that at this time “it is not reviewing the presence on Canadian TVs of RT.”  Sweden has similarly recognized that foreign media has the potential to become a threat to its national security.

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Prepared by Ruth Levush
Senior Foreign Law Specialist
June 2019

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Last Updated: 12/30/2020