Should money count as freedom of speech
Kerstin from the ceiling
is professor of public law with a focus on international law, European law and general political theory as well as director of the Walther Schücking Institute for International Law at the Christian Albrechts University in Kiel. She was born in Hamburg, grew up in Mexico City and graduated from high school in Leverkusen. She then studied law and "Sciences Politiques" in Bonn, Trier and Aix-en-Provence (France). After her legal clerkship in Cottbus as well as her doctorate and habilitation in Trier, she became professor for international and European law, foreign public law and comparative law at the University of St. Gallen (Switzerland). In 2011 she returned to Germany and has been a professor in Kiel ever since.
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Freedom of expression as a human right and as a fundamental right"Human rights" and "fundamental rights" are basically the same. These are rights that people are entitled to - because they are individuals with intellect, feelings and a distinctive personality. When these rights are enshrined in international documents, they are called "human rights". If they are in the German constitution, the "Basic Law", they are called "Basic Rights". Freedom of expression is both a human right and a fundamental right.
Legal basisFreedom of expression is one of the oldest human rights. It can already be found in the "Declaration of human and civil rights" of 1789, which was proclaimed in the course of the French Revolution:
The free communication of thoughts and opinions is one of the most precious human rights. Every citizen can therefore write, speak and print freely, subject to responsibility for the abuse of this freedom in the cases determined by the law.
Today freedom of expression is guaranteed as a human right in worldwide international human rights documents. The most important are the "Universal Declaration of Human Rights" adopted by the UN General Assembly in 1948
Everyone has the right to freedom of expression and expression; This right includes the freedom to hold opinions unhindered and to search for, receive and disseminate information and ideas via media of any kind and regardless of borders.
and the 1966 International Covenant on Civil and Political Rights
- Everyone has the right to freedom of expression.
- Everyone has the right to freedom of expression; This right includes the freedom to procure, receive and pass on information and ideas of all kinds (...) regardless of national borders.
- The exercise of the rights provided for in paragraph 2 is associated with special duties and responsibilities. It can therefore be subject to certain statutory restrictions that are necessary:
- for respecting the rights or reputations of others;
- for the protection of national security, public order (ordre public), public health or public morality
Although freedom of expression is intended as a global human right, it is not guaranteed in every state. The "Universal Declaration of Human Rights" is non-binding, and the "International Covenant on Civil and Political Rights" has only been ratified by 173 (of the approx. 200) states.
It is therefore crucial whether freedom of expression is guaranteed in the national constitutions. In Germany, freedom of expression is anchored as a fundamental right in the constitution, the "Basic Law" of 1949.
- Everyone has the right to freely express and disseminate his or her opinion in words, in writing and in pictures and to learn from generally accessible sources without hindrance. (…) Censorship does not take place.
- These rights find their limits in the provisions of general laws, the legal provisions for the protection of young people and in the right to personal honor.
Freedom of expression holder
Art. 5 of the Basic Law begins with the word "everyone". This means that all people (so-called "natural persons") have freedom of expression - regardless of their nationality, their origin, their gender, their state of mind, their political position, etc. Minors also have freedom of expression if they are able to To understand and assess the meaning of an utterance. On the other hand, organized groups of people (so-called "legal persons"), such as associations, non-governmental organizations (Greenpeace, Amnesty International, etc.), have freedom of expression. Freedom of expression is therefore referred to as the "everyone's right".
Committed to freedom of expressionFreedom of expression is a protective right vis-à-vis the state. So it is the state that has to respect the freedom of expression of all people on its territory. In principle, the state must not restrict freedom of expression. Above all, it must not prohibit certain opinions, such as critical voices. Freedom of expression therefore applies "vertically" between people and the state.
At the same time, however, freedom of expression also applies between people. It also applies "horizontally". The reason is that freedom of expression is part of the German constitutional system of values. This influences all German norms, including those in the relationship between people. The state protects freedom of expression by ensuring that everyone respects other people's freedom of expression.
Content of freedom of expressionFreedom of expression protects "opinions". This is understood to mean value judgments and points of view. Since opinions are always subjective, they cannot be objectively right or wrong, valuable or worthless. They are all protected. Opinions are understood to mean both political and other opinions. Assertions of fact are also protected as opinions - but only if they are necessary for the formation of opinions. On the other hand, deliberately false statements of fact, i.e. lies, are not protected. This applies, for example, to the denial of the Holocaust. This is prohibited and punishable under Section 130 (3) of the Criminal Code. Deliberate lies ("fake news") do not fall under the freedom of expression.
The entire process of freedom of expression is protected. This means that both the "emergence" of an opinion (by collecting information and other opinions), the "having" an opinion (as an internal thought process) and the "dissemination" of an opinion (through written, oral or other communication) are protected. The focus is on "spreading" opinions. The aim is a free and unhindered exchange of views. Everyone should hear as many opinions as possible in order to form their own opinion, to change it or to confirm it. Exchanging your own opinions and contradicting one another is an essential part of freedom of expression. How the opinions are spread is of no importance. Distribution via posters, flyers, on the Internet, via Facebook, YouTube, etc. is also protected.
"Protection" of freedom of expression means that neither the state nor the individual may forbid an opinion. In principle, it is also not possible to punish an expression of opinion (e.g. by ordering a fine, sentencing to pay damages, etc.).
Ban on censorshipArt. 5 para. 1 of the Basic Law expressly says: "There is no censorship." A "censorship" is to be understood as a preliminary or preventive censorship, that is, the introduction of an official procedure before an opinion is published. Such censorship is absolutely forbidden in Germany. It is therefore not possible, for example, for the content of a newspaper or a website to be checked (and possibly banned) by the state before it is published. It is possible, however, for the state to check already published expressions of opinion to ensure that they comply with the limits of freedom of expression.
Limits to Freedom of ExpressionEvery fundamental and human right, including freedom of expression, has limits. These are expressly mentioned both in the Basic Law and in international human rights documents. Article 5, Paragraph 2 of the Basic Law names three limits to freedom of expression:
The first limit is the "right to personal honor". This means that insults, humiliation and slander are not covered by freedom of expression. So everyone has the right to express their opinion and criticize others. He may not insult or slander those who think differently. The exchange of views must remain "fair".
The second limit is the "protection of youth". All expressions of opinion that, for example, glorify violence or crime, provoke hatred of other people or depict sexual processes in a grossly shameful manner are harmful to minors. They are not part of the freedom of expression.
The third limit is what are known as "general laws". These are laws that protect other constitutional legal interests. In other words: Freedom of expression ends where a law protects other fundamental rights / other community values. Such a law is only "general" if it is not directed against an individual opinion, i.e. if it is neutral in opinion. A law must therefore not prohibit a certain opinion in order to protect other rights and values (for example, it is not possible to prohibit environmentally friendly opinions in order to protect the economy - or vice versa - prohibit business-friendly opinions in order to protect the environment).
There is only one exception in Germany in which a certain opinion is forbidden and punished: the approval, glorification or justification of the National Socialist rule of violence and arbitrariness. Such opinions are punishable by imprisonment of up to three years or a fine in accordance with Section 130 (4) of the Criminal Code. The reasons are, on the one hand, their potential threat to peace, and on the other hand, the Basic Law itself, which is a deliberate alternative to National Socialism.
The limits are to be observed by every holder of the freedom of expression, i.e. every single person as well as associations and other groups of people. Otherwise there will be bans and penalties. Those who enable the dissemination of opinions (newspapers, internet platforms, social networks, etc.) also have to ensure that the limits are adhered to. You are therefore not allowed to disseminate or delete opinions that exceed the boundaries. Only in this way is a fair exchange of views possible.
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