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Protection of personal rights versus freedom of speech: which right has priority?

The boundary between freedom of speech and protection of personal rights is very fragile and difficult to demarcate.

Our law firm has been representing clients in lawsuits for protection of personal rights for several years. Those lawsuits are special and interesting because they involve a clash of two constitutional rights - freedom of speech and protection of personal rights (usually honor and reputation, privacy). Neither is given priority over another without further details. Only according to the circumstances of a specific case and ascertained factual situation the courts decide which of the two constitutional rights has more weight and should be given protection to the detriment of another.

The boundary between freedom of speech and protection of personal rights is very fragile and difficult to demarcate. In practice, it is not always easy to correctly assess which of the two constitutional rights has priority.

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In this article we therefore concentrate on answering the following question: when does the protection of personal rights prevail over the freedom of speech?

FACTUAL ASSERTION OR JUDGMENT?

When assessing whether the protection of personal rights prevails over the freedom of speech, it is necessary to first relate to the nature of the expression that intervenes in personal rights.

We distinguish between two types of expression in the protection of personal rights: factual assertion and judgment.

FACTUAL ASSERTION

Factual assertion relies on facts, objective reality. Factual assertion discusses whether a specific event (fact) occurred in the past and under what circumstances. Factual assertion comprises the alleged event description for which evidence should exist.

In other words, factual assertion is any assertion that can be objectively proven or disproven.

An example of factual assertion: “X was accused of committing a fraud.” (The expression is a factual assertion because it is possible to objectively prove whether police have accused X of committing a fraud. We can ascertain if it is true or not).

WHEN FACTUAL ASSERTION IS NOT PROTECTED UNDER FREEDOM OF SPEECH

Factual assertion is not protected under freedom of speech when it unlawfully interferes with personal rights.

(Un)lawfulness of a factual assertion depends on whether it is true or not and simultaneously whether it might objectively do harm to personal rights of the person involved in the eyes of others - i.e. whether it might be defamatory (slanderous or libelous).

Untrue, defamatory factual assertion always unlawfully interferes with personal rights protection. Publishing an untrue statement that X physically abuses his wife serves as an example of this.

True factual assertion in principle does not interfere with personal rights protection. However, that is not true when such a statement, even if true, is presented in a distorted defamatory manner or is so intimate that it violates the right to privacy or dignity. An example of this is publishing true information that although married, X has been unfaithful to his wife and he does not want disclose his extramarital relationships.

JUDGMENT (CRITIQUE)

Contrary to factual assertion, judgment (critique) is an expression of subjective opinion of the author who assesses a certain event on the basis of their own subjective criteria. A judgment, therefore, does not depict a fact, an objectively existing situation, but only reflects the author’s views of a certain event. Consequently, it is impossible to objectively ascertain whether a critique is true or not. We can only determine that it is acceptable or unacceptable.

An example of judgment: “X is a bad physician and his license should be suspended” (the expression is a judgment because it expresses a subjective author’s opinion about the medical practice of X).

WHEN CRITIQUE IS NOT PROTECTED UNDER FREEDOM OF SPEECH

The right to publically articulate one’s opinions and ideas (both positive and negative) is an inseparable part of freedom of speech and is an important means of pluralist democracy in society. Critique benefits from very strong protection of the freedom of speech; as a result, that right is often perceived as unlimited. The opposite is true: under certain circumstances, exercising the right to critique constitutes an unlawful interference with personal rights.

If unacceptable, critique does not benefit from protection under the freedom of speech. Distinguishing between acceptable and unacceptable critique is therefore of the utmost importance. Critique is deemed acceptable when it meets the criteria of factualness, concreteness and adequacy.

Factualness criterion: Critique is deemed factual if based on true facts, objectively verifiable true underlying materials from which corresponding judgments are logically derived. If the underlying materials are untrue and the judgment is defamatory, the critique is deemed unacceptable.

Concreteness criterion: Critique is deemed concrete if it has a sufficient factual basis and is supported by concrete facts. A critique that is not based on facts but only on general, unsupported conclusions and assumed ideas is unacceptable.

Adequacy criterion: The purpose and motivation of critique must not be used to judge, slander, use libel, scandalize or offend a person.

If a critique does not meet the said three criteria, it is not a fair critique, goes beyond the boundaries of acceptable critique and constitutes an unlawful interference with personal rights, which in this case prevail over the freedom of speech.

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