On The ECtHR's Caselaw Of Freedom Of Expression

European Convention on Human Rights (ECHR) is the first regional human rights convention. In Article 10, it holds "everyone has the right to freedom of expression." In accordance with ECHR, European Court of Human Rights (ECtHR) is a judiciary which is for the sake of respect and protection of the human rights, and it is in the core of the European human rights protection mechanisms. There are a considerable proportion of cases concerning freedom of expression in caselaw of ECtHR. In this study, at first, I'll interpretate the Article 10 of the ECHR, and then show the system of protection of freedom of expression in Europe on the basis of the ECtHR's caselaws.Article 10 of the ECHR comprises two paragraphs, pragraph 1 positively acknowledges the freedom of expression, and paragraph 2 defines the scope of freedom of expression, it provides the aims and conditions of restriction on freedom of expression. Paragraph 2 is an exception to the paragraph 1. This legislative model has been widely adopted in the world.Exercise of the freedom of expression carries with duties and responsibilities, and may be subject to such formalities, conditions, restrictions and penalties which are prescribed by law. ECtHR may adopt "five-step approach" to examine whether the measures which introduced by the member states to interfere the freedom of expression are in line with the ECHR. The essential three are 1) does the interference proscribe by law? 2) does the interference pursue the legitimate aims? and 3) is the interference necessary in the democratic society? As there is no common criteria in "necessary in the democratic society", ECtHR authorizes the margin of appreciation to the member states, the scope of the margin of appreciation depends on the types of expression. Member states may enjoy mainimum margin of appreciation to assess political expression, and they should be afforded a wider margin of appreciation to assess the commercial expression. ECtHR introduces the proportionality principle to weigh whether member states' interfering measures are proportionate to the legitimate aims they pursued.Literally there is no freedom of the press in Article 10 of ECHR, but ECtHR offerred the special protections to it. In ECtHR's view, the media serve as purveyor of information and public watchdog. In order to protect freedom of the press, ECtHR prohibits the requirement that journalists should uncover their secret sources, prohibits to search journalist's office or home. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. Of course, when engaging in professional conduct, journalists should show their good faith and comply with the ethics of journalism.Among ten aims mentioned in the Article 10, paragraph 2, this study focuses on 'national security' and 'protection of the reputation'. In my opinion, ECtHR fails to properly deal with the conflict between national security and freedom of expression. In defamation case, ECtHR devided victims into three categories:politicians, civil servants and private individuals. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Among civil servants, ECtHR offers special protection to the judges. ECtHR never tell us why, that is a pity.This study compares the protection to freedom of expression in USA and ECtHR from the legal texts and judicial practice, especilly from libel case. In sum, U.S. has more protection to freedom of speech than Europe, but Europe is far ahead of U.S. in protection to serect information sourses. Comprehensively, this paper argues Europen experience is more advisable in the countries with imperfect legal system and rule of law.