Article 11 of the EU Charter of Fundamental Rights specifically deals with freedom of expression and information, setting out the principles that guide the protection of free speech across the European Union. Here's a detailed explanation of these principles:

Text of Article 11:

1. Freedom of Expression: "Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

2. Freedom of the Arts and Sciences: "The freedom and pluralism of the media shall be respected."

Principles of Free Speech in Article 11:

1. Freedom to Hold Opinions

• Protection of Thought: This guarantees the right to form and maintain one's own opinions without interference. This aspect is foundational because freedom of expression begins with the freedom of thought.

2. Freedom to Receive and Impart Information and Ideas

• Access to Information: There is a right to seek, receive, and use information from various sources. This is crucial for democracy, education, and personal development.

• Dissemination of Information: The right to share or express information and ideas encompasses all forms of communication, whether spoken, written, printed, or via any media, including digital platforms.

• Without Interference: This implies that public authorities should not unduly restrict or censor communication. Restrictions are only permissible under very specific conditions.

• Regardless of Frontiers: This principle supports the free flow of information across national borders within the EU, promoting a European-wide discourse and understanding.

3. Freedom and Pluralism of the Media

• Media Freedom: The media must be free to operate without undue governmental or political control. This includes the freedom to report, investigate, and comment on matters of public interest without censorship.

• Media Pluralism: This emphasizes the importance of diversity in media ownership and content, ensuring a variety of viewpoints are accessible to the public. It aims to prevent monopolies or oligopolies in media that could skew public opinion or limit access to diverse information.

Limitations and Exceptions:

While Article 11 strongly protects free speech, it acknowledges that this freedom is not absolute:

• Necessary in a Democratic Society: Any limitation on free speech must be prescribed by law and necessary in a democratic society. These limitations must be proportionate to the aim pursued and should not negate the essence of the rights.

• Legitimate Aims for Restrictions: Limitations can only be justified for reasons such as:

  • National security

  • Territorial integrity or public safety

  • Prevention of disorder or crime

  • Protection of health or morals

  • Protection of the rights and freedoms of others, including privacy, reputation, and the right to a fair trial.

• Proportionality: Any restriction must be balanced against the right to free expression, ensuring the least intrusive means are used to achieve the legitimate aim.

Practical Implications:

• Legal Protections: EU member states must align their national laws with these principles, ensuring that their legislation on defamation, privacy, hate speech, etc., respects the foundational right to free speech.

• Court Interpretations: The Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR) often interpret these rights, providing guidance on how to balance freedom of expression with other rights.

• Digital Era: The principles extend to digital communications. This includes debates over internet freedom, social media regulations, and data protection laws like GDPR, where freedom of expression sometimes clashes with privacy rights.

• Journalism and Whistleblowing: The protection extends to journalists and whistleblowers, ensuring they can operate without fear of reprisal for revealing information that is in the public interest, although this area can be contentious.

• Cultural and Artistic Expression: The freedom of the arts is also covered, protecting creative expressions that might be controversial or challenging to societal norms.

In sum, Article 11 of the EU Charter of Fundamental Rights champions a broad interpretation of free speech, which is essential for democracy, cultural diversity, and the open exchange of ideas within the EU. However, this right is balanced against other rights and societal interests, requiring nuanced application in law and practice.

Lastly, we note the following: The term "hate speech" lacks a precise, universally accepted definition, leading to inconsistent application and potential misuse. This ambiguity allows for subjective interpretations, which can stifle legitimate discourse or protect harmful speech under the guise of free expression. A clear, legally binding definition is essential to protect free speech while effectively tackling genuine threats to social harmony, ensuring laws aren't weaponized against minorities or used to suppress dissent.

The Polish Constitution explicitly addresses the right to freedom of expression, which inherently includes anti-censorship principles. Here's how this is reflected in the document:

Article 54 of the Polish Constitution:

This article is the primary source for understanding freedom of expression and anti-censorship provisions:

• Freedom of Expression: "The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone."

  • This ensures the right to both express one's own views and to access information from others, forming a cornerstone of anti-censorship.

• Pre-publication Censorship Ban: "Preventive censorship of the means of social communication and the licensing of the press shall be prohibited."

  • This is a direct prohibition of pre-publication censorship, meaning that no governmental or other authority can review, approve, or deny content before it is published. This is crucial for preventing the state from controlling what can be published.

• Prohibition of Licensing for the Press: The clause also bans the licensing of the press, which historically has been used as a tool of censorship by requiring publications to obtain permission before operating.

• Exceptions to Freedom: "Limitations upon the exercise of the freedom of expression may be imposed by statute solely in the interest of protecting State security, public order, public health and morals, the rights and freedoms of other persons, or for preventing the disclosure of information received in confidence."

  • While this does allow for some restrictions, these are to be narrowly defined by statute and not used as a broad excuse for censorship.

• Right to Reply: "Everyone shall have the right to reply to any information published in the media that violates their personal or property rights."

  • This provision ensures that individuals have a legal recourse if their rights are infringed upon by published content, aiming to balance freedom of speech with individual rights without resorting to preemptive censorship.

Implications:

• State and Media: This article fundamentally limits the state's ability to control or censor media content before it reaches the public, fostering an environment where media can operate freely.

• Cultural and Political Impact: By enshrining such protections, the Polish Constitution supports a democratic society where ideas, including those critical of the government or societal norms, can be freely discussed, contributing to a vibrant public discourse.

• Challenges in Practice: Despite these constitutional protections, there have been debates and legal battles over what constitutes an acceptable limitation on expression, particularly with laws on hate speech, defamation, and blasphemy. These can sometimes be seen as encroaching on free speech, though they aim to protect other fundamental rights.

• European Influence: Poland, being part of the EU, also has to navigate its constitutional freedoms in line with EU laws and the European Convention on Human Rights, which might push for broader interpretations of free speech protections.

In essence, Article 54 of the Polish Constitution provides strong anti-censorship protections by ensuring freedom of expression while setting out clear, limited conditions under which this freedom might be restricted. However, the practical application of these principles can be subject to judicial interpretation, legislative action, and societal norms, which sometimes lead to tension between freedom of speech and other legal provisions.