The importance of freedom of expression in a democratic society

Freedom of expression is particularly important for human freedom and democratic development of society. The opportunity of equal and full exercise of this right determines the degree of openness and democracy of society. [1]

The Constitutional Court of Georgia has repeatedly observed that free society consists of free individuals who think freely, hold independent and different opinions and participate in democratic processes, which entails exchange of opinions and debates. [2]

According to the European Court of Human Rights [3] and the Constitutional Court of Georgia [4], freedom of speech covers not only those opinions and  expressions that are acceptable to everyone and are favorably received, but also those ideas, opinions or statements which are unacceptable to the government,part of the society or certain individuals, which can cause shock and public outrage.

The best way to balance freedom of expression is expression again, because any opinion, statement that you disagree with, do not like or consider as false, can be rejected by opinions and ideas you like, share or consider as correct. [5]

Taking into account the role and importance of freedom of expression in a democratic society, it is necessary to create and maintain such legislative framework that ensures free exchange of opinions and ideas.

Attempts to restrict freedom of expression in recent years

Despite the fact that the constitution of Georgia [6] guarantees the high standard ofprotection of freedom of expression, in recent years, initiatives of certain public officials and agencies threatened  freedom of expression several times:

Attempt to limit criticism of judges - In 2015 the High Council of Justicepublished a statement calling on the government and other political parties, civil society, interest groups as well as the media, while exercising freedom of expression to refrain from statements that can damage  the authority and prestige of the Judiciary andcan cause loss of public trust towards thecourt.

In 2017 Eva Gotsiridze, who was a member of the High Council of Justice at that time, said that it was necessary to set the scope of permissible criticism towards judges. Later, she spoke about the improvement of the legislative mechanism in this regard after the presentation of the Judicial Action Plan. Although there was no further discussion on this issue, such statements created a threat of restriction of freedom of expression.

It should be noted that public criticism of the courts does not invariably present a threat to judicial independence, but actually can play a key role in ensuring that the Judiciary remains independent. Such critiques are a way of calling on judges to remain faithful to their calling and to avoid partiality and influence of public opinion when deciding cases [7]. Like other branches of government, the judicial authorities themselves benefit from a healthy exchange of opinions. [8]

Attempt to impose liability for insulting religious feelings - Recently there were dangerous legislative initiatives with regard to imposingliability for insulting religious feelings,which are totally contradictory to theEuropean and Constitutional standards of freedom of expression.

According to the earlier judgment of the Constitutional Court of Georgia, the lack of acceptance of values ​​and ideas can not be the basis for restriction of freedom of expression. The state is obliged to protect objectively identifiable interests, but not subjective feelings [9]. Therefore, such initiatives constitute an attempt to suppress critical opinion in society that threatens freedom of expression and the democratic development of the country.

Statements regarding tightening regulatory norms of defamation

Georgian society faced the threat of deteriorating standard of freedom of expression at the beginning of 2019 when high public officials made statements regarding tightening regulatory norms of  defamation. According to the President of Georgia, there is a need for such legislation that ensures more protection of human dignity and freedom of speech. In March 2019, in her speech at the Parliament of Georgia the President once again emphasized tightening of the regulatory norms of defamation.

The law adopted on 20 November 2018 in France, which was used as an example by the President ofGeorgia in the context of defamation regulation, is actually aimed at combating the spread of fake news during the pre-election period and has nothing to do with regulation of defamation. This law provides for transparency obligation for digital platforms as well as the right of judges to issue a legal injunction to swiftly halt the circulation of fake news during the pre-election period. In order to qualify information as the “fake news”, the following three criteria must be met:

- The fake news must be manifest;

- be disseminated deliberately on a massive scale;

- and lead to a disturbance of the peace or compromise the outcome of an election. [10]

Therefore, the law against fake news in France has been differently interpreted in Georgian reality and has been linked to a stricter regulation of defamation.

Taking into consideration the fact that current Georgian legislation already ensures protection of freedom of expression as well as respect for the honor and dignity of the person, the initiative of the President of Georgia regarding defamationwill pose a serious threat to the standard of freedom of  expression. Deterioration of the existing standard will be a step backwards and will put democratic values at risk.

Regulation of defamation under current legislation

Despite the great importance of freedom of expression, it is not an absolute right. No human freedom can be based on encroachment on freedom of others. Therefore, the limit of freedom of expression is the rights of others. [11] When conflict between reputation, dignity and freedom of expression arises,  the government is obliged to ensure a reasonable balance.

Defamation was decriminalized in Georgia in 2004 [12], which was an important step forward. In the same yearthe Law of Georgia “On Freedom of Speech and Expression” was adopted which envisages civil liability for defamation of  private and public persons. Therefore, at present any person can bring an action in court and seek to protect their rights in case their honor and dignity are infringed.

According to current legislation, [13]a person shall bear responsibility under the civil law for defamation of a private person, if the plaintiff proves in court that the statement of the respondent contains a substantially false fact in relation to the plaintiff, and that the plaintiff suffered damage as a result of this statement. In case of a public figure,  the following additional condition should also be met: the falseness of the stated fact was known to the respondent in advance, or the respondent acted with apparent and gross negligence, which led to spreading a statement containing a substantially false fact.

In order to consider a person as a potential victim of defamation, a statement must contain a substantially false fact inflicting harm and damaging a particular person’s reputation. A statement, which concerns an undefined group of persons and/or where the plaintiff is not clearly identified, may not be a subject of litigation of defamation. [14]

Allocation of the burden of proof under current legislation ensures high standard of protection of freedom of expression. The burden of proof for limitation of freedom of speech shall lie with the initiator of the limitation. Any reasonable doubt that cannot be confirmed under the procedure established by the law shall be resolved against the limitation of the freedom of speech. [15]

When considering the issue of liability under the law, first of all, it is important to find out whether it is a matter of expressing an opinion or defamation, because thought is protected by an absolute privilege, which means a complete and unconditional release from liability. [16]

According to the Supreme Court of Georgia [17], the distinction between a fact and an opinion is a necessary precondition  for determining defamation. Opinion should be defined in a broad manner. It implies value judgment, attitude or an assessment accuracy or falseness of which entirely depends on an individual and his/her subjective attitude. As for the facts, they are usually free of subjective attitude as they derive from objective circumstances. Therefore, it is possible to check the facts and determine their truthfulness.

As regards the form of liability for defamation, a respondent may be required by court to publish a notice on the court decision in a form determined by the court. According to the law, it is inadmissible to force the defendant to apologize. If the respondent makes a correction or denial within the time limit determined by the law, but publishing the correction or denial is not sufficient for proper reimbursement of the damages caused by the defamation to the plaintiff, the respondent may be required to reimburse pecuniary and/or non-pecuniary (moral) damages to the plaintiff. [18]

Conclusion

Freedom of expression is a necessary precondition for the establishment of a democratic state. Without it,self-realization of each individual and development of society is impossible.

Uninterrupted dissemination of opinion and information ensures the diversity of viewpoints, promotes public and informed discussion of important issues for the society, enables each member of the society to be involved in public life. [19]

In Georgia certain initiatives are put forward periodically, which are aimed at limiting freedom of expression, which has become a dangerous trend. Statements related to tightening regulation of defamation were particularly problematic in this regard.

Any initiative aimed at tightening regulation of defamation threatens high democratic standard of freedom of expression, which is a significant achievement of our society. Limitation of freedom of expression will give rise to suppressing critical and different opinions and will have a negative impact upon democracy and development of open society.

[1] The judgment of 18 April 2011 of the Constitutional Court of Georgia on the case N2/482,483,48,502 political union of citizens "Movement for United Georgia", political union of citizens "Conservative Party of Georgia," Georgian citizens - Zviad Dzidziguri and Kakha Kukava, Georgian Young Lawyers' Association, Georgian citizens Dachi Tsaguria and Jaba jishkariani, Georgian Public Defender vs. the Parliament of Georgia, II, 25.

[2] The judgment of 26 October 2007 of the Constitutional Court of Georgia on the case N2/2/389 Maia Natadze and others vs. the Parliament of Georgia and the President of Georgia, II, 13.

[3] Handyside v The United Kingdom,§ 49.

[4] The judgment of 30 September 2016 of the Constitutional Court of Georgia on the case N1/6/561,568 Georgian citizen Yuri Vazagashvili vs. the Parliament of Georgia, II, 40.

[5] The judgment of 30 September 2016 of the Constitutional Court of Georgia on the case N1/6/561,568 Georgian citizen Yuri Vazagashvili vs. the Parliament of Georgia, II, 50.

[6] Constitution of Georgia, Article 17.

[7] VieT D. Dinh (2007), Threats to Judicial Independence, Real and Imagined. The Georgetown Law Journal, 929-944.

[8] Michael K. Addo (1998), Are Judges Beyond Criticism under Article 10 of the European Convention on Human Rights? International and Comparative Law Quarterly, 47, pp. 425-438.

[9] The judgment of 10 November 2009 of the Constitutional Court of Georgia on the case N1/3/421,422 Georgian citizens Giorgi Kipiani and Avtandil Ungiadze vs. Parliament of Georgia, II, 7.

[10] https://www.gouvernement.fr/en/combating-the-manipulation-of-information?fbclid=IwAR0NY8isvsJ9ntX3Dr75GWj7xuQxd6YComqvngr6ZTofB-aKOVGXUJw258A

[11] The judgment of 30 September 2016 of the Constitutional Court of Georgia on the case N1/6/561,568 Georgian citizen Yuri Vazagashvili vs. the Parliament of Georgia, II, 44.

[12]  https://matsne.gov.ge/ka/document/view/33232?publication=0

[13] Law of Georgia on Freedom of Speech and Expression, Articles 13 and 14.

[14] Ibid, Article 6.

[15] Ibid, Article 7.

[16] Ibid, Article 4.

[17] The Judgment of 26 July 2017 of the Supreme Court of Georgia on the case N1 1011-972-2016.

[18] Law of Georgia on Freedom of Speech and Expression, Article 17.

[19] The judgment of 11 April 2012 of the Constitutional Court of Georgia on the case N1/1/468 the Public Defender of Georgia vs. the Parliament of Georgia, II, 26.