Restricting Expression to Promote Democracy: A Misguided Tale or A Necessary Limit

Abstract

The right to freedom of expression has been considered to be a cornerstone of contemporary democratic societies. It is a manifestation of the legal dimensions of the human endeavour of communication, which for many, should be unfettered. In fact, any form of restriction imposed on the exercise of this right has been interpreted to be an attack on the most fundamental aspect of human rights. To this end, the beginning of civil unrest is usually accompanied by restrictions on the ability to express public discord against government actors. However, as the media through which communication occurs has modernised, so too has the legal space for that expression been regulated by Governments. The fairly recent media concept of “fake news” or “disinformation”, anonymous social media posts and advertisements which seek to spread conspiracy theories or anti-government sentiment, have sparked a wave of measures to control or restrain the space within which persons express themselves. However, while there is a recognition that the right to freedom of expression is a core democratic right, could its abuse be antithetical to democracy itself. In other words, could a restraint of certain forms of expression be justifiable in the pursuit of democracy. It is this question that will be explored in this paper. First, the international legal framework for the right will be explored. Second, will be a discussion of the boundaries of the recognised lawful restrictions of the right. Third, will be an exploration of contemporary examples of restraint by countries of the right both in traditional and new media. Finally, there will be general recommendations on how states may regulate communication without unlawfully limiting the right. This research is both topical and relevant as it seeks to engage in an academic discourse on live matters related to new media and democracy.