Executive Summary

The global landscape for freedom of expression has faced severe challenges in 2023. Even open democracies have implemented restrictive measures. The European Union’s Digital Services Act (DSA) exemplifies this trend, the European Commission’s aggressive enforcement of which has raised concerns among rights groups. The Commission demands the removal of content classified as “hate speech,” “terrorist content,” or “disinformation” from major social media platforms, threatening significant fines for non-compliance. This approach has sparked accusations of overreach and violation of international human rights standards. Similarly, the UK’s Online Safety Act made law in October 2023, has raised alarms about potential censorship. The Act’s stringent regulations and substantial financial penalties for not removing illegal content could inadvertently lead to the suppression of lawful speech. In the realm of journalism, criminal defamation laws pose a significant threat. Cases like Italian reporter Roberto Saviano, penalized for criticizing Prime Minister Giorgia Meloni, and Chilean editor Felipe Soto, reprimanded for an article criticizing a public official, highlight the risks for journalists and critics in democratic states. Denmark’s reintroduction of a blasphemy ban, unenforced since 1946 and abolished in 2017, is another stark reminder that citizens of open democracies cannot take well-established speech protections for granted.

The right to protest has also been curtailed in the context of the Israeli-Palestinian conflict. France and Germany have imposed broad bans on pro-Palestinian demonstrations, citing hate speech and public order concerns. Artistic freedom is not immune either, as seen in South Korea, where a government body canceled a sensitive exhibition in the National Parliament due to an unflattering portrayal of the country’s president. The concerns over mis- and disinformation have prompted the Australian government to propose a sweeping misinformation bill that critics say will have far-reaching consequences for freedom of expression Down Under.

But these dramatic erosions of freedom of expression in democracies are not isolated events. They are part of a broader and global free speech recession that has afflicted the heartland of free expression in open democracies, and which threatens to roll back hard-won freedoms.

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Scope and Importance:

Spanning from 2015 to 2022, this report analyzes free speech trends across 22 open democracies across the globe as identified by national experts in the surveyed countries. The contributors’ input allows us to investigate how the world’s most free and democratic nations have protected or restricted freedom of expression amidst pivotal global events including devastating terrorist attacks, the COVID-19 pandemic, the war in Ukraine and disinformation campaigns by authoritarian states like Russia and China. The scale of speech restrictions documented in this report suggests that while democracies face serious challenges, the cure has become worse than the disease and that open societies must look to alternative and non-restrictive measures if they are to protect democracy without sacrificing freedom of expression—without which democracy is meaningless—in the process.

Key Findings:

Our analysis reveals alarming trends:

A majority (78%) of reported developments from our contributing experts point to increased speech restrictions.
Except for 2015, every year witnessed a majority of developments limiting expression, with a noticeable upsurge in 2022.
The predominant form of restrictive developments were legislative actions (57%), followed by enforcement/caselaw (27%) and non-legislative measures (16%).
National security, national cohesion and public safety were the most cited reasons for limiting expression, with Denmark leading in this category.
Intermediary obligations and hate speech laws accounted for 18% and 17% of restrictions, respectively, with notable implications in countries like Norway, Denmark, and Spain.
On the brighter side, protection trends focused on press freedom (22%), protest rights (12%), and democracy (12%).

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Recommendations

The scope creep of hate speech laws covering ever more categories and protected characteristics threatens to erode free speech and the commitment to solve difficult and controversial debates through dialogue and debate. Moreover, there is growing evidence that free speech is more likely to limit than to fan violent conflict – including terrorism – in open democracies. We recommend that democracies reconsider the usefulness of hate speech laws and that such restrictions on freedom of expression should map more closely to the strict requirements under Article 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR). This includes taking inspiration from the so-called Rabat Plan of Action’s six-part test, which emphasizes, among other things, that even hateful speech should only be restricted if based on the intent to create imminent harm. This would also include scrapping laws against “offensive” and “insulting” speech that frequently serve to protect those in power, rather than the powerless. To combat genuine hatred and racism states should increasingly focus on non-restrictive methods to counter hate speech including education, dialogue, fostering counterspeech (online and offline) and offering support to and solidarity with communities targeted.

“Illegal content” should be narrowly defined under intermediary obligations on online platforms. As alluded to in the discussion of the DSA and OSA above, these laws incentivize platforms to err on the side of censoring “awful but lawful” content to avoid punitive fines. Political bodies such as the European Commission should not be given regulatory powers over online speech.

A limited application of privacy laws such as the Right to Be Forgotten ensures that legitimate and public interest-related content is not unjustifiably removed, preserving the transparency of historical events and safeguarding the public’s right to know. Overly broad implementation could inadvertently lead to censorship, inhibiting the free flow of information, and hindering the public’s ability to engage with diverse perspectives. While child online safety advocates highlight important risks, a lack of end-to-end encryption poses a major threat to free speech by compromising the privacy of online communication, leading to potential self-censorship due to fears of surveillance.

Strategic lawsuits against public participation (SLAPPs), a form of defamation suit, are a problem blighting several countries. SLAPPs are most corrosive when they are used to censor public interest criticism of wealthy and powerful people and corporations, by burdening the critic with eyewatering legal costs. We support attempts by lawmakers and judges to prevent SLAPPs from being filed through anti-SLAPP measures. In the case of ‘David and Goliath’ defamation claims, it is important that there is legal aid available to support public interest criticism. Criminal defamation laws are outdated and a disproportionate sanction for speech, they have no place in a modern democracy and should be repealed.

Disinformation is not in and of itself illegal under international human rights law. Accordingly, disinformation should not be conflated with illegal content under content regulations of online platforms, such as the DSA. Any powers given to state bodies to regulate disinformation should be narrowed to very concrete and imminent harms so as to limit the chances of governments becoming arbiters of truth or labeling inconvenient information and opinions as illegal disinformation. Alternative and non-restrictive means such as media literacy, prebunking, and increasing trust in media, political and cultural institutions are also more likely to foster resilience against disinformation.

When it comes to emergency measures adopted during the Covid-19, governments should repeal these. Lessons should also be learned from mistakes in how governments disproportionately censored dissent, in order to avoid overly broad and draconian measures affecting the freedoms of expression and assembly when democratic societies are next confronted with new emergencies.

Society benefits from a culture of academic freedom and free inquiry at universities, which is increasingly challenged. If it appears that certain lawful speech is being routinely censored, there could be a limited role for government in protecting this expression. However, governments should tread very carefully when intervening in speech on campus, as the risk of politization and imposing censorship in the name of fighting censorship is real.

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