Freedom of Expression and its Restrictions in Europe
On the Applicability of Article 17 of the European Convention of Human Rights to Disinformation (Fake News)
Keywords:freedom of expression, proportionality test, fake news, disinformation, free speech clause, exclusion clause, abuse clause
Freedom of expression is not an absolute right and has limitations set up by international human rights treaties. The general clause of its limitation falls within the scope of the ‘rights of others’ as provided, for instance, in the European Convention of Human Rights. The role of the courts is to balance freedom of expression and the rights of others, performing a three-step test of legality, necessity, and proportionality of any restriction. However, according to the well-established case law of the European Court of Human Rights, some forms of expression do not enjoy protection under free speech clauses. Therefore, the European Court of Human Rights dismisses claims as manifestly inadmissible under Article 17. This ‘abuse’ clause is invoked when a particular claim is based on undermining the democratic values of a liberal state. The purpose of the abuse clause is to preserve the self-sustainability of the Convention. This paper aims to analyze whether fake news and disinformation campaigns fall under the scope of Article 17.