«There shall be freedom of expression»

The Commission states as its basic opinion that Norway should be an open society in which everyone should have the right to express him- or herself freely and to keep him- or herself informed. An enlightened, active and critical public debate is the cornerstone of democracy. This view follows from the wording "There shall be freedom of expression" and is thus affirmatively expressed in the first paragraph of the proposed amendment.

Freedom of expression as a concrete concept

The proposed new Article 100 will provide for a better protection of freedom of expression, compared to the present Article 100 of the Norwegian Constitution. Any impediment to free speech must be justifiable in relation to the reasons behind freedom of expression.

By emphasising – in the constitution itself (second paragraph) – the three main reasons for freedom of expression, one will achieve a realistic balance between, on the one hand, the interests favouring restrictions on the right to freedom of expression, and on the other hand, the need to avoid the harm or interference that may be caused by the restrictions on the three dialectic processes which require, by their very nature, unsupervised communication, i.e. freedom of expression. The three processes are the dialectical seeking of truth, uninhibited debate on matters of public concern in a democracy, and the individual?s freedom to form his or her own opinions by imparting and receiving information and ideas. These three reasons in favour of freedom of expression are thoroughly described in the report (Chapter 2). Our method of approaching the difficult question "What may be a legitimate restriction on freedom of speech?" ensures that free speech will be seen as something more than an abstract principle – open to an inherent risk of misunderstanding and thus to a risk of a lower priority. Free speech should as a result of our method be regarded as a concrete requirement of partly universal importance. Legal restrictions on the right to impart information and ideas (in the report named "classical free speech"), the right to receive information and ideas (named "freedom of information"), and the right not to speak ("the right to remain silent") that can not be justified or defended, in the light of the three reasons for freedom of expression, may not be enacted, adopted or enforced (first and second sentence of the second paragraph).

Restoration of the degree of guilt

The Commission proposes that no person should be held responsible for the reason that the content of an allegation is untrue, if the person uttered the statement in non-negligent good faith (third sentence of the second paragraph). The Commission sees this as partly restoring the degree of guilt implied by the phase "wilfully and manifestly" in the present Article 100. The requirement of acting "wilfully and manifestly" has – at least since 1842 – not been understood as a hindrance to strict liability regarding the truthfulness of the content of a defamatory accusation. The Commission finds it unreasonable to hold a person liable for untrue statements when the person him- or herself was under a bona fideimpression that he or she only spoke the truth. Strict liability would also have an unwanted chilling effect on public debate. True and important information would not be made public for fear of failing to provide proof acceptable to the standards of the courts of law. Such a restoration also seems necessary in order to comply with the case law of the European Court of Human Rights.

The Commission also states that it is necessary to introduce, into national defamation law, a distinction between statements regarding facts and statements which must be seen as value judgements. It should be made clear that no person is legally obliged to demonstrate the truth of a value judgement.

The right to speak frankly

The Commission supports the present third sentence in Article 100, which since 1814 has stated that "Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever", and proposes this sentence as the new third paragraph in the amended Article 100.

As opposed to the freedom in the second paragraph, the freedom guaranteed in the third paragraph is without exemptions, as long as the speech can be regarded as "frank" and the subject relates to matters of public concern. The term "any other subject whatsoever" should be read in conjunction with "the administration of the State", and thus be understood as an uninhibited right to speak frankly on matters of public concern.

The third paragraph applies to restrictions on freedom of expression adopted and enforced both by the state and by private entities (such as employers).

Prohibition of prior censorship

The Commission proposes that the scope of the Constitution?s present prohibition on prior censorship should be extended from its present application to printed material to include any form of speech, regardless of the chosen media (fourth paragraph). This means that today?s censorship of moving pictures – in relation to an adult audience – must be abolished. Regulations which constitute a hindrance to the free establishment of channels of communication in the public sphere may only be maintained in so far as there are technical reasons for such regulations. The Commission states that the fourth paragraph should be interpreted as having a restrictive effect on the granting of interim injunctions against speech. Likewise, the fourth paragraph means that demonstrations or other public manifestations may not be banned in advance only because of the prospective demands of the demonstration.

The proposal allows for exemptions from the prohibition of prior censorship and other preventive measures as far as is necessary to protect minors from any harmful influence of moving pictures, meaning both cinema films, video films and other moving images. Private letters to and from inmates in institutions, inter alia prisons and psychiatric hospitals, may be subject to censorship provided that such censorship is based on a court order.

Access to information

The Commission proposes that the citizen?s right of access to information held by the public administration and the courts should be provided for in the Constitution (fifth paragraph). Any exceptions from the right of access to public documents or the right to be present at meetings must be prescribed by law, and such exceptions may only be enacted when overriding considerations so denote.

State responsibility for providing public speaking facilities

The sixth paragraph of the proposal emphasises the obligation of the state to create the conditions necessary for an open and enlightened public debate. The Norwegian state has for decades – even centuries – taken an interest in the development and maintenance of the public sphere, and the Commission sees it as important that the state’s obligation in this respect – which is more of a political than of a legal character – is manifested in the Constitution. The overall obligation should be to secure a plurality of voices in the public sphere, which inter alia includes an obligation to help underprivileged groups to be heard by providing them with the necessary means of addressing a wider audience.

The sixth paragraph means that the state should continue to fund education and research, should continue to contribute financially – directly or indirectly – to art, culture, newspapers and magazines (in Norwegian and in minority languages), public service broadcasting and the variety of organisations. The paragraph also creates a basis for legislation restricting ownership concentration in the media.

The members of the Commission

The following 16 persons have been members of the Norwegian Governmental Commission on Freedom of Expression:

1. Chairman Mr. Francis Sejersted, Professor of History, University of Oslo,

2. Vice-chair Ms. Vigdis Moe Skarstein, University Director, Norwegian University of Science and Technology, Trondheim

3. Mr. Jon Bing, Professor of Law, University of Oslo,

4. Mr. Thor Bjarne Bore, Editor-in-Chief of Stavanger Aftenblad,

5. Ms. Tove Bull, Rector of the University of Tromsø, Professor of Nordic Languages,

6. Ms. Diis Irene Bøhn, Journalist, former President of the Norwegian Union of Journalists, Oslo,

7. Ms. Kristin Høgdahl, Project Director, Norwegian Institute of Human Rights, Oslo,

8. Ms. Nazneen Khan, Journalist, Oslo,

9. Mr. Ole Henrik Magga, Professor of Sámi Language, University of Tromsø, former President of the Sámi Parliament,

10. Mr. Helge Rønning, Professor of Media and Communication, University of Oslo,

11. Mr. Gunnar Skirbekk, Professor of Philosophy, University of Bergen,

12. Mr. Eivind Smith, Professor of Public Law, University of Oslo,

13. Mr. Hans Stenberg-Nilsen, Attorney-at-law, Oslo,

14. Ms. Ellen Stensrud, Information Director, the Norwegian Confederation of Trade Unions,

15. Mr. Kjeld Vibe, Ambassador, Oslo,

16. Ms. Maria Fuglevaag Warsinski, Film director, Oslo.

Mr. Ørnulf Røhnebæk has been the legal secretary of the Commission throughout its period of office, while Ms. Mona Aarhus has been the second legal secretary as of 30 March 1998.

The Commission started its work in January 1997 and the present report was submitted in September 1999. During its approximately two and a half years of work, the Commission met for 32 days. Seven of the meetings (three in Oslo and the others in Tromsø, Stavanger, Bergen and Trondheim) were arranged as open hearings on different subjects relating to free speech, inter alia journalism, defamation, minorities and their opportunities to be heard, privacy, the responsibility of the distributor, national security and sedition, and employees? participation in public debate. More than 40 people contributed with prepared speeches. In addition the Commission met with various kinds of experts in closed sessions, inter alia Justice Antonin Scalia of the US Supreme Court.

The Commission has initiated and financed four external studies and two of them (in Norwegian) are printed in an annex to our report, namely Hans Fredrik Dahl and Henrik G. Bastiansen: Ytringsfrihetens historie i Norge i det 20. århundre (The history of freedom of expression in Norway in the 20^th century) and Kyrre Eggen: Norges internasjonale forpliktelser på ytringsfrihetens område (The international obligations of Norway in the field of freedom of expression).