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The Ordo Iuris Institute has submitted an opinion in the consultation conducted by the UN Special Rapporteur on freedom of opinion and expression concerning the mandate’s priorities for 2026 to 2029.

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According to Ordo Iuris, restrictions on freedom of speech in democratic states increasingly stem not from overt censorship but from regulatory mechanisms based on vague criteria.

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Ordo Iuris pointed out that whether speech is lawful should ultimately be decided by an independent court, not by administrative authorities or online platforms.

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Ordo Iuris proposed that the groups particularly at risk should include persons whose lawful religious, moral or political speech is penalized or removed.

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The experts noted that some provisions of the EU’s Digital Services Act create an incentive to remove lawful content.

The main problem in the area of freedom of speech

The Ordo Iuris Institute has submitted a written opinion in the consultation launched by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. The consultation concerns the strategic priorities and vision-setting of the mandate for 2026 to 2029. It is to result in a report that Special Rapporteur Leopoldo Maldonado Gutiérrez will present to the UN Human Rights Council in June 2027.

In the assessment of Ordo Iuris experts, the main problem running through all four thematic areas identified by the Special Rapporteur is that, in democratic states, restrictions on freedom of expression stem less and less from overt censorship and more and more from regulatory mechanisms. The decision on whether a given statement falls within the limits of acceptable public debate is entrusted to administrative authorities and online platforms, with significant involvement of non-governmental organizations, often funded from public money. This usually takes place on the basis of vague criteria and without genuine judicial review.

Courts should decide whether speech is lawful

In its opinion, Ordo Iuris stated that whether a given statement is lawful should ultimately be decided by independent courts. In this context, Ordo Iuris cited the Special Rapporteur’s 2018 report, which recommended that states seek to restrict online content only on the basis of an order issued by an independent and impartial judicial authority. Where decisions to restrict content are taken by administrative authorities, algorithmic systems or online platforms, the user must retain access to effective judicial review, and the burden of justifying the restriction should rest with the state.

In the opinion submitted to the Special Rapporteur, Ordo Iuris also pointed out that concepts such as “disinformation,” “harmful content” and “hate speech” are increasingly used in legislation without a precise definition. Yet, under General Comment No. 34 of the UN Human Rights Committee, a norm restricting freedom of expression must be formulated with sufficient precision to enable individuals to regulate their conduct accordingly. UN Special Rapporteurs have previously found general prohibitions on the dissemination of information based on vague concepts, including that of “false news,” to be incompatible with international standards.

Discrimination on the grounds of opinion

Ordo Iuris proposed that the list of groups at heightened risk of violations identified by the Special Rapporteur should also include persons whose lawful statements are penalized, removed or demonetized because of the religious, moral or political views they express. The experts stressed that this is not about threats or incitement to discrimination, hostility or violence, but about situations in which the sanction is a consequence of the mere expression of a view. They also recalled that the International Covenant on Civil and Political Rights prohibits discrimination on the grounds of religion and political or other opinion, and that the European Court of Human Rights held in Eweida and Others v. the United Kingdom that restrictions on the manifestation of religious beliefs in the workplace constitute an interference with freedom of religion and require careful balancing.

Ordo Iuris noted that in recent years much attention has been devoted to combating hate speech, and far less to the risk of overly broad restrictions introduced in its name. Yet, as the European Court of Human Rights ruled in Handyside v. the United Kingdom, freedom of expression also covers information and ideas that “offend, shock or disturb.” Ordo Iuris recalled that Article 20(2) of the Covenant requires the prohibition of any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and that the Rabat Plan of Action clarifies this high threshold by means of a six-part test. In the view of Ordo Iuris, provisions penalizing insult or offense on account of membership in broadly and imprecisely defined groups, where this threshold is not met, risk having a chilling effect on legitimate debate on contested moral and social issues.

The Digital Services Act as a regulatory model

In the section devoted to the European Union, Ordo Iuris addressed the Digital Services Act (DSA). It acknowledged the solutions introduced by the regulation, such as the obligation to provide reasons for moderation decisions and the possibility of out-of-court settlement of disputes with platforms. However, it pointed out that several elements of the DSA create a structural incentive to remove lawful content. These include the obligations to mitigate systemic risks, including risks to “civic discourse,” which the regulation does not define; the privileged position of trusted flaggers, whose notices platforms must process with priority; the crisis response mechanism triggered by the European Commission; codes of conduct, including the one on disinformation; and fines of up to 6 percent of annual worldwide turnover. Ordo Iuris recalled that UN Special Rapporteurs have warned against the chilling effect of disproportionate sanctions and against the risk of excessive content removal when platforms are entrusted with functions traditionally performed by courts. The significance of these threats extends beyond the Union, as the DSA model is increasingly presented as a template for other regions of the world.

Recommendations for the Special Rapporteur

Ordo Iuris recommended that the Special Rapporteur identify as a priority the principle that the unlawfulness of speech is ultimately determined by an independent court, to which every person whose content has been removed or restricted should have prompt access, and confirm that Article 19(3) of the Covenant binds the state also when it restricts speech through platforms or trusted flaggers, assessing the DSA model in that light. Ordo Iuris experts also recommended that trusted flaggers be independent of public authorities, disclose their sources of funding and have no conflicts of interest, and called for concepts used to restrict freedom of speech, such as “hate speech,” to be precisely defined in law. The authors of the opinion urge the Special Rapporteur to recognize the penalization, removal and demonetization of content because of lawfully expressed religious, moral or political views as discrimination, to confirm that controversial speech does not, for that reason alone, amount to incitement to hatred, and to recommend that penalties imposed on platforms be proportionate and subject to judicial review. Ordo Iuris lawyers also recommended establishing the liability of platforms and states to compensate persons whose freedom of expression has been restricted without justification.

“The participation of Ordo Iuris in the Special Rapporteur’s consultation is particularly important at the beginning of his new term, because this is when the priorities that will guide him over the coming years are being set. Today, the threat to freedom of speech rarely takes the form of open censorship. Far more often, it stems from legislation that relies on vague concepts and shifts decisions on the limits of public debate from independent courts to officials, online platforms and the organizations that cooperate with them. That is why Ordo Iuris stresses that the limits of freedom of speech should ultimately be decided by an independent court, not by an official or an algorithm,” comments Patryk Ignaszczak of the Ordo Iuris Center for International Law.

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Source of cover photo: iStock