Any restrictions on freedom of expression must be lawful and must be an exception made on individual cases. Therefore, the police, the courts, state institutions and even private companies and organisations must demonstrate that any restrictive measure:
- is established by law
- pursues a legitimate aim
- is necessary to ensure that legitimate aim
- and is proportional
Learn more about each of these criteria:
Any restrictive measure must be based on law. This means that the police or even your employer cannot restrict your freedom of expression unless this possibility is provided by law.
example The Estonian Penal Code provides that incitement of hatred is punishable by a fine or detention.
example Pursuant to the Estonian Employment Contracts Act the employer is allowed to determine which information the employee is obligated to keep confidential. The employer and employee may agree on a contractual penalty for breaching this obligation pursuant to the rules under the Estonian Law of Obligations Act. However, the employer cannot impose restrictions which are based only on internal orders and are not grounded in law.
Any restrictive measure must pursue an important objective, which the state needs to protect (legitimate aim). These aims are listed in legal documents, such as the Estonian Constitution and the European Convention on Human Rights.
example Restrictions may be imposed to protect against the disclosure of confidential information, to protect other people’s rights and interests or to prevent disorder or crime etc.
Any restrictive measure must only be taken if it is really necessary to reach the legitimate aim. State institutions will have the duty to prove that necessity.
example To ensure the impartiality of courts, it might be reasonable that a judge is not allowed to be a member of a political party. However, the imposition of such a restriction on a policeman would not be reasonable.
Firstly, any restrictive measure must be proportional to the legitimate aim. This means that your right to express yourself must be balanced against those rights or interests which the state is trying to protect.
example The court would need to give arguments why the protection of the privacy of a public figure in a specific case is more important than the public’s interest in receiving the information that has been made public.
Secondly, the restriction as well as the applied sanction must be proportional to the legitimate aim. If your statements have violated the rights of other persons, the sanction must be proportional to that particular violation. This means that the penalty you receive must be reasonable and correspond to the gravity of your violation.
example If the court applied criminal sanctions to you for excessive criticism of a public official, this would most likely be disproportional. If the court required you to pay a sum three times higher than was previously ever awarded in a defamation case, this would also be disproportional.
Articles 13 – 15, 19
Articles 4, 17, 23
Articles 151, 156
Articles 44, 45
18 January 2011
17 December 2004
21 July 2011