Article 19

Amendment of the constitutional provision relating to freedom of expression

178. The most significant development regarding freedom of expression in the period covered by the current report is the adoption on 30 September 2004 of a new Article 100 of the Norwegian Constitution. The new provision is a complete and thorough revision of the previous Article 100 regarding freedom of expression, which had not been altered since its adoption in 1814. The revision is a result of the work of the Commission on Freedom of Expression, as mentioned in the fourth periodic report (paragraphs 225-227). On the basis of the Commission’s report (Official Norwegian Report, NOU 1999: 27), the Government submitted a white paper (Report No 26 (2003-2004) to the Storting) recommending that Article 100 should be amended. The wording recommended in the white paper was altered somewhat as a result of the ensuing parliamentary debate, but the legal substance of the provision that was finally adopted was in most respects in line with the Government’s recommendation. Thus, the preparatory work laid down by the Commission on Freedom of Expression and by the Government will still, together with the Standing Committee’s report and plenary discussions in the Storting, guide the interpretation of the constitutional provision.

179. Article 100 of the Constitution reads (in English translation) reads as follows:
“There shall be freedom of expression.
No one may be held liable at law, except on the basis of contract or other private legal basis, for having conveyed or received information, ideas or messages unless such liability can be justified in consideration of the reasons for the right to freedom of expression namely the search for truth, democracy and the individual's free formation of opinions. Such legal responsibility must be clearly prescribed by law.
Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever. Only clearly defined limitations to this right may be set, when justified by particularly weighty considerations that outbalance the reasons for the right to freedom of expression.
Prior censorship and other preventive measures may not be used unless it is necessary to protect children and young people from harmful influence of moving pictures. Censorship of letters may only be implemented in institutions.
Everyone has a right of access to the documents of the State and of the municipal administration and a right to be present at sittings of the courts and elected assemblies. The law may prescribe limitations to this right in regard of the right to privacy or other weighty considerations.
It is a duty of the State authorities to facilitate an open and enlightened public dialogue.”

180. One of the most important aspects of the new Article 100 is that it secures the constitutional protection of freedom of expression regardless of the media the expression is channelled through. Strictly speaking, the previous Article 100 mainly concerned the printed media, in that it stipulated that “There shall be liberty of the Press”, and that “No person may be punished for any writing…”. In contrast, the new Article 100, second paragraph, states in general terms that “There shall be freedom of expression.”

181. The new Article 100 is also a significantly more complete provision in the sense that it covers all the basic aspects of the right to freedom of expression. The previous provision did not cover inter alia the right to demonstrate or protest, the right to receive information or the right to access to information held by public authorities. These aspects are important parts of the new Article 100, and will be examined in the following.

182. According to the second paragraph of the new Article 100, no person may be held liable for having “conveyed or received information, ideas or messages”. Thus, the protection includes both the right to impart and to receive information and ideas. The right not to express oneself, the “right to silence”, is also protected under the second paragraph, even though this is not explicitly expressed in the provision. The provision only provides protection from liability imposed by public authorities, not from civil liability imposed on the basis of a contract, e.g. an employment contract. “Political” speech, which is specifically regulated in the third paragraph, is however also protected against interference from private persons or entities, e.g. private employers. Thus, the new constitutional provision protects the freedom of expression of employees much better than the previous one.

183. The protection provided in the second paragraph of Article 100 is not limitless. The provision states that no person may be held liable for expressions conveyed or received, unless such liability can be justified in consideration of the reasons for the right to freedom of expression, namely the “search for truth, democracy and the individual formation of opinions”. In this way, Article 100 reflects a utilitarian approach to the freedom of expression, as opposed to a view on freedom of expression as an inherent, inviolable right conferred on all human beings. If a certain limitation on the right to freedom of expression can be justified in consideration of the reasons for or ultimate objectives of this right, and there are also sufficiently weighty reasons to limit such freedom of expression, the limitation is legitimate. If for instance it can be held that certain commercial, violent or pornographic expressions do not contribute to the “search for truth, democracy and the individual formation of opinions”, it may be justified to hold the conveyor of such expressions liable for their content.

184. In the above-mentioned white paper (Report No 26 (2003-2004) to the Storting), the general principles of the second paragraph are elaborated in more detail in relation to certain categories of expressions and in connection with certain conflicting interests. This is intended to guide future interpretation of the constitutional provision, and therefore has a certain legal relevance. Some of the more important aspects of the white paper will therefore be examined in the following.

185. According to section 142 of the Penal Code, any person who “by word or deed publicly insults or in an offensive or injurious manner shows contempt for any creed” is liable to a penalty. Blasphemous expressions may have a wider political application, for example if they are directed at a religious institution, and in such cases the third paragraph of Article 100 of the Constitution will apply. Other blasphemous expressions may be perceived as attacks on an individual’s personal beliefs and integrity and thus undermine the processes that the right to freedom of expression is meant to promote. The Government therefore concludes in the white paper that it should still be possible to prosecute an individual for the most detrimental blasphemous expressions, even though the last prosecution on grounds of blasphemy took place in 1933.

186. According to section 135 a of the Penal Code, any person who “by any utterance or other communication, including expression by symbols, made publicly or otherwise disseminated among the public threatens, insults, or subjects to hatred, persecution or contempt any person or group of persons because of their creed, race, colour or national or ethnic origin” is liable to a penalty. This provision has generally been considered to be consistent with international human rights obligations in that it lies within the “margin of appreciation” granted to national authorities in their determination of the level of protection of the right to freedom of expression, which may be in conflict with the need to protect persons from verbal racism or other hate speech. However, it has been claimed that section 135 a does not provide sufficient protection for minorities against racial abuse. In its third report on Norway, published in June 2003, the European Commission against Racism and Intolerance (ECRI) held that “the Norwegian legislation […] does not provide individuals with adequate protection against racist expression.”

187. This conclusion was reached partly on the basis of a Norwegian Supreme Court judgement of 17 December 2002, published in Norwegian Supreme Court Reports 2002 p. 1618 (“Sjøliesaken”), which overturned a Court of Appeal decision to convict the defendant for breach of section 135 a. In the context of a demonstration held in memory of Rudolf Hess, the defendant used strongly anti-immigrant and anti-Semitic speech, including the following: “[E]very day our people and country are robbed and destroyed by Jews who take the wealth and replace it with immorality and anti-Norwegian thoughts.” After the speech, the defendant requested one minute’s silence in memory of Rudolf Hess and then shouted “sieg heil”. A majority of the Supreme Court judges held that both the anti-immigrant and the anti-Semitic statements were protected by the right to freedom of speech pursuant to Article 100 of the Constitution, and the defendant was therefore acquitted. The majority of the judges held that the right to freedom of expression implies that a person should not be penalised for an opinion that is not explicitly expressed but only inferred by others from his statements.

188. The judgement caused a lot of debate in the Norwegian media as to whether such statements deserved to be protected by the right to freedom of expression pursuant to Article 100. In the white paper the Government expressed the opinion that the new Article 100 should provide greater scope for making such blatantly racist statements punishable. This also seems to be the outcome of the adoption of Article 100, even though it is not in every detail clear how the provision must be interpreted. The Government is now preparing a bill to amend section 135a of the Penal Code in order to adjust the scope of the provision.

189. Section 204 of the Penal Code makes it a punishable offence to publish, sell or in any other manner distribute pornography, which is defined as sexual depictions that are offensive or are likely to have a humanly degrading or corrupting effect. Sexual depictions that have an artistic, scientific or informative purpose do not fall within the scope of this provision. Only sexual depictions that are purely commercial or for entertainment, and can be deemed to be offensive to public morals are considered to be “pornography” according to section 204. Such depictions cannot be said to contribute in any significant manner to the aforementioned processes that the right to freedom of expression is meant to promote. The freedom to convey such expressions can therefore, according to the white paper, be limited to a certain extent. In the Government’s opinion, the existing section 204 of the Penal Code does not have to be amended or limited as a result of the new Article 100 of the Constitution. When it comes to child pornography, not only distribution, but also possession and reception are punishable according to section 204. The freedom of expression when it comes to this kind of pornography is close to non-existent. On this particular point, the need to suppress an industry that violates the most basic rights of children must have priority over the freedom of every individual to convey and receive such expressions.

190. The third paragraph of the new constitutional provision specifically relates to expressions of a “political” nature, i.e. expressions concerning the administration of the State or other important public matters, defined widely. In the white paper, “political expressions” are described as “all subjects of public interest, […] of a political, social, moral and cultural nature.” Political speech is essential to the processes that the freedom of expression is meant to contribute to, and is therefore given an especially strong protection. However, not even the freedom to convey “political” expressions is limitless. Paragraph three states that limitations to this right have to be “clearly defined”, and must be “justified by particularly weighty considerations” that outbalance the reasons for the freedom of expression. For example, although some racist expressions may be considered to be of a “political” nature, they may be curtailed and possibly even prosecuted under section 135 a of the Penal Code.

191. The fourth paragraph of Article 100 is also of central importance. It specifically prohibits censorship and other forms of prior restraint on all types of expressions. This is to signal that this type of limitation on the right to freedom of expression is considered to be particularly damaging to the ultimate objectives of freedom of expression. The only form of censorship that is expressly permitted is certain prior restraints for the protection of children from the detrimental influence of “moving pictures”, e.g. television, films and videos. A system of setting age limits for films and video that are violent, pornographic or otherwise unsuitable for children can thus be retained. Advance approval or other forms of prior restraint on films and videos for adults are abolished following the adoption of the new Article 100 of the Constitution. The second clause of the fourth paragraph expressly states that censorship of letters and other private correspondence may only be implemented in institutions, i.e. prisons and mental institutions.

192. The fifth paragraph concerns the right to access to information held by public authorities, which is regarded as an important aspect of the freedom of expression, more precisely the right to access to available information. The provision reads: “Everyone has the right to access to State and municipal documents and to be present at sittings of courts and elected assemblies.” This right may be limited, but only “in regard of the right to privacy or other weighty considerations”. The Government is currently considering a draft of a new Freedom of Information Act, set forth in a report issued on 3 December 2003 (Official Norwegian Report, NOU 2003: 30 New Freedom of Information Act).

193. Finally, the sixth paragraph imposes a duty on the public authorities to “facilitate an open and enlightened public dialogue”. The paragraph focuses on positive obligations on the part of the State. This can, however, only to a limited degree be seen as a legal duty. The provision rather imposes a political duty on the governing authorities to ensure that the freedom of expression is effective in the sense that the public are given a real opportunity to express themselves freely through a variety of media. Legal duties and corresponding rights for the individual must primarily be established through ordinary legislation.

Penal sanctions against defamation

194. In its concluding observations on Norway’s fourth periodic report, the Committee recommended early action to review and reform laws relating to criminal defamation. The Penal Code has not been amended on this particular point in the period covered by the current report, largely because the Government was awaiting the outcome and follow up of the work done by the Commission on Freedom of Expression. However, there has been significant development in the case law regarding defamation, to a large extent as a result of developments in the case law of the European Court of Human Rights. In 1999 and 2000 the Court ruled against Norway in three cases where the applicants had been subjected to sanctions because of certain defamatory statements. The Norwegian Supreme Court has subsequently complied with this case law. In a judgement published in Norwegian Supreme Court Reports 2003 p. 928, the Supreme Court stated: “[I]t is the Convention and the European Court of Human Rights’ practice that is currently the primary source of law when Norwegian courts are to identify those defamatory statements that may result in penal sanctions or mortification.”

195. In general, defamatory statements are more and more seldom met with penal sanctions. In the period from 1 January 1999 to 1 October 2004, the Supreme Court handed down ten judgements concerning the lawfulness of defamatory statements. None of these cases have concerned criminal defamation, but rather various forms of civil liability or injunctions.

196. In the white paper concerning the new constitutional provision on freedom of expression (Report No 26 (2003-2004) to the Storting), the Government states that the adjustment of Norwegian case law towards the practice of the European Court of Human Rights ought to be reflected in the relevant provisions of the Penal Code. In addition, it is generally noted in the white paper that criminal sanctions should be given a less prominent role in the law of defamation. The Government will thus, in the ongoing work on preparing a new Penal Code, ensure that the provisions concerning penal sanctions on defamatory statements are revised to this effect.

Political advertising in broadcasting

197. In 1995 the Parliamentary Ombudsman for Public Administration raised objections to the prohibition of religious and political advertising in broadcasting, among other things as regards its legal basis in the legislation relating to broadcasting and the Marketing Act (see paragraph 232 of Norway’s fourth report). However, a Proposition to the Storting (Proposition No 8: 61 (1995-96) to the Storting) to the effect that the said prohibition should be abolished was rejected by the Storting. The majority instead explicitly expressed the opinion that the prohibition should be maintained, but it also requested a review of its compatibility with the protection of freedom of expression (cf. Recommendation No 217 (1995-96)). The Government subsequently proposed including a provision in Act of 4 December 1992 No 127 relating to broadcasting (enclosed as Appendix 13) prohibiting religious and political advertising in television broadcasts (cf. Proposition No 58 (1998-99) to the Odelsting). Such a provision was incorporated into section 3-1, third paragraph, of the Broadcasting Act by Act of 25 June 1999 No 51.

198. However, from the parliamentary debate on the new Article 100 of the Constitution, it was clear that the majority of the Storting was in favour of abolishing the prohibition on political advertising in section 3-1 of the Broadcasting Act. The Government will therefore consider a proposal to amend the Broadcasting Act to this effect.

Other matters relating to public broadcasting

199. In 2003 Act of 4 December 1992 No 127 was amended, revoking the general licence requirement for broadcasting networks. The licence requirement for terrestrial wireless transmission networks that are primarily utilised for broadcasting purposes was retained, however, because of the current scarcity of frequency resources.

200. In 1998 the Broadcasting Complaints Commission was abolished. The Commission, established by Act of 4 December 1992 No 127 relating to broadcasting, investigated complaints pertaining to the right of reply, improper conduct and invasion of privacy by Norwegian broadcasters. Such complaints have since been referred to the media’s own self-regulatory body.

201. Act of 13 June 1997 No 53 relating to the supervision of the acquisition of newspaper and broadcasting enterprises (the Media Ownership Act, enclosed as Appendix 14) entered into force on 1 January 1999. The purpose of the Act is to promote freedom of expression, genuine opportunities to express one’s opinions and a comprehensive range of media. The concern was that a strong concentration of media ownership could lead to the standardisation of information to the public, and make it more difficult for citizens to express ideas and views that are not in the interests of the media owners.

202. The Norwegian Media Ownership Authority was established on 1 January 1999. Pursuant to the Act and subject to certain conditions, the Authority has discretionary powers to impose conditions on acquisitions of ownership interests in newspaper or broadcasting enterprises, or to stop them. The sector-specific limits set out in the broadcasting regulations relating to ownership of broadcasting companies were abolished as a consequence of the introduction of the Media Ownership Act.

203. Following the parliamentary debate on the media white paper (Report No 57 (2000-2001) to the Storting) in 2002, the Government put forward a bill in June 2004 proposing to raise the ownership threshold at the national level, abolish ownership restrictions at the local level, and extend the scope of the Act to cover electronic media.