Freedom of Speech (and its Limits) in the Digital World

There has been much debate about freedom of expression and how far it goes - the idea that one’s freedom ends where another’s begins comes to mind.

Our increasingly digital world has introduced new elements to this debate, and whilst free speech undeniably plays an important role in upholding human rights and democracy, we cannot ignore its political weaponisation, as well as the rise of (online) hate speech, mis/disinformation and “fake news”.

Such issues are relevant across the globe, although the focus of this piece is more on Europe and the United States.

What is freedom of speech, and what are its limits?

Let’s first have a look at some legal definitions. In France, for example, freedom of speech was introduced as a “natural, inalienable and sacred” right in the Declaration of the Rights of Man and of the Citizen, adopted back in 1789 (during the French revolution). The text served as the basis for subsequent French constitutions and is said to have inspired similar texts in Europe and further afield. Article XI of this declaration states: “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.” It thus mentions certain limitations to this freedom, namely in the case of its abuse.

For its part, the First Amendment to the US Constitution in 1791 states: “Congress shall make no law […] abridging the freedom of speech, or of the press”, among other things.

Later key texts proclaiming the right to freedom of expression include the Universal Declaration of Human Rights (UDHR), the European Convention on Human Rights and the EU Charter of Fundamental Rights. Adopted in 1948, the UDHR is a milestone international document enshrining the rights and freedoms of all human beings. Article 19 states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” However, according to Article 29.2, this right (and others) is subject to limitations “as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

Similar definitions are outlined in Article 10 of the European Convention on Human Rights (signed in 1950) and Article 11 of the Charter of Fundamental Rights of the European Union (signed in 2000): “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” The latter also mentions press freedom and pluralism - another important element of a functioning democracy.

However, as with the UDHR, these rights are not absolute. Article 52 of the EU Charter of Fundamental Rights states that there may be limitations but only if “provided for by law and [if the limitations] respect the essence of those rights and freedoms”. Such limitations are “subject to the principle of proportionality” and are possible “only if they are necessary and genuinely meet objectives of general interest recognised by the [European] Union or the need to protect the rights and freedoms of others.” This charter came into effect in 2009 and is legally binding in all EU member states, including Luxembourg - whose own constitution enshrines the right to both freedom of expression and freedom of the press, “except for the repression of offences”.

Free speech in an increasingly digital world: application, threats & challenges

Freedom of expression is thus recognised as an international human right, although there may be limitations where this right conflicts with other rights and/or harms other people. There are people who criticise such limitations, arguing that free speech must be absolute (although some appear to use this as an excuse for hate speech), while others justify limitations by referring to the “harm principle”, i.e. actions limited only to prevent harm to others.

There does seem to be a fine line at times between free speech, which should be protected (within its limits), and hate speech, not least on digital platforms where people may hide behind their online persona. A conference held in Luxembourg last November - ahead of the planned reform of Luxembourg’s Electronic Media Law - addressed this subject, looking at how far freedom of expression goes and the issues of (online) anonymity and hate speech. Among the main takeaways was the reminder that something that is illegal offline is also illegal online. The speakers also discussed the importance of education - but whose responsibility is this? Should online platforms work to improve content moderation in order to tackle hate speech and disinformation? What if the platform owner is ideologically aligned with the author of this problematic content? Look at Elon Musk’s X (formerly Twitter) - hundreds of thousands of X users (including public figures, brands, non-profit organisations, etc.) have reportedly fled the platform in recent months, with many citing hate speech and fake news, as well as new terms of service, as reasons for leaving. Some are also leaving Mark Zuckerberg’s Meta platforms over the decision to end third-party fact checking (as a form of content moderation), reportedly for “more speech and fewer mistakes”.

Getting back to Elon Musk, the billionaire right-hand man of US President Donald Trump has positioned himself as an advocate for free speech absolutism - if one ignores the reports of censorship on his own platform. He even received (and rejected) a nomination for the Nobel Peace Prize for his free speech advocacy… For his part, President Trump issued an executive order on his first day back in office (20 January 2025) reportedly aimed at “Restoring freedom of speech and ending federal censorship”. The order argued that the previous administration (under Joe Biden) “trampled free speech rights by censoring Americans’ speech on online platforms”. It accused the Federal Government of having used the excuse of “combatting ‘misinformation’, ‘disinformation’, and ‘malinformation’” to infringe on US citizens' right to free speech to reflect the government’s “preferred narrative about significant matters of public debate”. The President later outlined the new policy aimed at “protecting” this right. The order drew criticism from people who highlighted Trump’s own history of threatening and suing journalists, critics and political opponents. They also debunked the argument that the government had pressured social media companies to remove certain content - claims that were already rejected by the US Supreme Court.

Public figures such as Donald Trump, Elon Musk and Mark Zuckerberg thus claim their opponents are destroying free speech. And yet, this advocacy for free speech absolutism does not seem to extend to said opponents/critics (reminder of those reports of selective moderation / censorship on social media). A recent example suggesting such figures do not in fact support freedom of expression as they so claim is the backlash over Washington Bishop Mariann Edgar Budde’s plea to President Trump “to have mercy” on the LGBTQ+ community and immigrants. An angered Trump criticised the bishop, who has received death threats over her sermon, and demanded an apology. But was she not merely exercising her right to free speech (and the right to religious freedom)? And should she not be protected from hate speech and threats of violence?

Even in Europe in recent years, there appears to have been a trend of the far right using freedom of expression as a political weapon. Germany’s AfD party has been among those in Europe to have been found to use AI-generated content to advance its anti-immigration message. The same party has seemingly found an ally in Elon Musk, who urged Germans to vote for the AfD in the upcoming elections. Such comments have raised additional concerns over his foreign political interference.

There are thus many challenges linked to freedom of expression in today’s world, from (online) hate speech and mis/disinformation to political weaponisation, to name a few.

Way forward: rules & regulations

Having spoken about social media, it is worth noting that there are certain regulations in place aimed at regulating these digital platforms. For example, the EU Digital Services Act (DSA) aims to make these platforms more accountable, particularly in terms of tackling disinformation and hate speech. However, this has also raised the question of how such regulations might impact - and restrict - free speech.

In his speech at the traditional New Year’s reception for the press earlier this year, Luxembourg’s Prime Minister Luc Frieden mentioned (among other things) the challenges posed by social media, which does not follow the same rules/code of ethics as traditional media. He acknowledged just how difficult it is to regulate these platforms. Regulation was also discussed in the Luxembourg Electronic Media Law reform conference series mentioned above. Whilst it may be difficult to achieve in practice, one of the speakers stressed the need for new media regulation laws to require digital platforms to act socially responsible.

Recent developments (linked to technology, politics, etc.) have also led to increasing calls for Europe to create its own social media platforms. There has been a step towards this in Luxembourg, where local politician and campaigner Christos Floros is leading “Project #Monnet”, aimed at “building a true European competitor”.

Coming back to the press reception, one clear message was that free speech and a free press are essential for democracy, which Prime Minister Frieden noted has come under threat, in Europe for example, through election interference and the far right’s abuse of freedom of expression.

So, where does freedom of speech end? When the lines between free speech and hate speech become blurred? We can see from the legal definitions that freedom of expression is essential, and I agree it should be protected (as a journalist, I also fully support a free press), but there are limitations - coming back to that idea of one’s freedom ending where another’s begins… And so, particularly in light of the related challenges in our increasingly digital world, what (more) can online platforms do to address hate speech and disinformation? Perhaps (re)introduce fact-checking as a form of moderation? And if certain existing platforms continue to opt for censorship of some ideas (e.g. those criticising the owners and their contacts) and keeping certain others (e.g. hate speech, misinformation), is it time to give other platforms a chance, or  even to develop new ones, that follow stricter rules? It certainly won’t be easy, but we need to address these challenges - perhaps through a combination of education, legislation and innovation - to ensure hate speech and disinformation do not spread, do not (further) damage our democracies or harm individuals, all the while protecting the sacred human right of free speech.