A restriction on freedom of expression means that the state somehow interferes with the expression of your ideas. This usually happens when the state prohibits the publication or expression of ideas beforehand (prior restraint) or sanctions the author or publisher after the ideas have already been expressed (post-publication restraint).

Prior restraint

Prior restraint is aimed at preventing an expression before other people have had an opportunity to receive it. Examples of measures of prior restraint are a court’s decision to prohibit the publication of an article,or book, or for example the transmission of a television programme on the basis of a pending court case.

Prior restraints can only be applied in very exceptional cases and they would need to be justified by very weighty reasons, such as the need to prevent incitement to violence against a certain ethnic or religious group. 

These measures interfere with the very essence of freedom of expression, that is, the exchange of information and ideas between those who wish to receive them and the recipients’ opportunity to form their opinion about them. That is why the courts must apply very strict standards when they evaluate whether these measures are permissible or not. 

Post-publication restraint

Post-publication restraints are aimed at sanctioning the author, commentator or publisher after the expression has been made public. This usually happens when the court or other public authorities have found them to be unlawful. Most often post-publication restrictions take the form of civil sanctions.

example If someone’s reputation has been damaged by false information, the accused may be ordered to pay compensation or retract the false information.

In rare cases there may also be criminal and disciplinary sanctions. Criminal sanctions are the strictest type of punishment and they must, therefore, be applied for only very good reasons. For example, to prevent incitement to violence, physical threats or incitement to hatred. These sanctions must always be proportional to the legitimate aim they pursue.

example If a hospital employee reveals the medical condition of a famous person he/she may be punished with a disciplinary sanction. However, a criminal charge resulting in a prison sentence will probably not be proportional in that situation.

Human Rights Guide

A European platform for human rights education