Interference with (restriction of) the freedom of expression and a justification for it

Freedom of expression is essential to the functioning of a democratic society. Therefore, it is a fundamental guarantee of all human rights and freedoms. Any restrictions on the freedom of expression can infringe upon not only the rights of an individual or the media but, at the same time, they can infringe the prerequisites for a democratic system within society, which are, on the other hand, the foundation of protection of other human rights and freedoms. In case of possible conflicts of the right to freedom of expression with other guaranteed rights and freedoms, the courts face a difficult task as they need to balance the conflicting rights and freedoms in each individual case. Only in exceptional cases should the freedom of expression be in retreat before another human right or freedom. For example, this will be the case where it is shown that the protection of democratic values and order is more important than the freedom of expression itself.¹⁶⁶⁷

States are permitted to require licensing of broadcasting enterprises based on the third sentence of Article 10, paragraph 1. Namely, States are allowed to control by a licensing system the way in which broadcasting is organised in their territories, particularly in its technical aspects. It does not, however, provide that licensing measures shall not otherwise be subject to the requirements of paragraph 2, for that would lead to a result contrary to the object and purpose of Article 10 taken as a whole. Technical aspects are undeniably important, but the grant or refusal of a licence may also be made conditional on other considerations, including such matters as the nature and objectives of a proposed station, its potential audience at the national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments. The compatibility of such interferences with the ECHR must nevertheless be assessed in light of the other requirements of paragraph 2.¹⁶⁶⁸ In particular, a State must not use a system of broadcast licensing to create a public broadcasting service monopoly, as it is contrary to the purposes of this freedom, media pluralism and diversity.¹⁶⁶⁹

Pursuant to paragraph 2 of Article 10 of the ECHR, restrictions on the exercise of freedom of expression must be prescribed by law, necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.