The Crime of Speaking: Freedom of Expression and Criminal Law in Europe

The Council of Europe has published a new guide warning against the growing reliance on criminal law which, while often justified as a means of protecting other rights and legitimate interests, risks instead restricting freedom of expression and the pluralism of opinions. 

Imagine a journalist standing in a courtroom, visibly tense. They have neither killed nor stolen. They are on trial because of a controversial article they wrote.

This is far from a fictional scenario. It may seem distant, yet it happens every time words are turned into a crime.

“Freedom of expression… is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”

These words were written by the European Court of Human Rights in December 1976 in Handyside v. the United Kingdom. The Council of Europe’s Division for Cooperation on Freedom of Expression opens its newly published report with this landmark quotation. The report’s title speaks for itself: Limiting the Use of Criminal Law to Restrict Freedom of Expression.

Its central message is straightforward: criminal law should be used sparingly and only as a measure of last resort. It should be reserved for concrete and serious threats, not for situations in which politicians or powerful corporations with significant influence over public debate feel offended by an editorial or targeted by investigative journalism.

The distinction is not merely legal; it is cultural and democratic. Criminalising speech produces what the European Court of Human Rights has long described as a chilling effect. In practice, imprisonment is not even necessary. The mere prospect of criminal proceedings is often enough to discourage journalists, activists and lawyers from speaking freely.

Nor does the problem lie solely in the severity of the punishment or sanction, as the Court has repeatedly emphasised.

In Şener v. Turkey, for example, the Court held that even a suspended sentence “has the effect of limiting the editor’s work and reducing his ability to offer the public views which have a place in a public debate whose existence cannot be denied.” A sword of Damocles hangs over those who write.

Similarly, in Brasilier v. France, the judges found that “although the fine imposed -a symbolic one franc- was as moderate as possible, that fact alone could not justify the interference with the applicant’s right to freedom of expression.” In other words, even a purely symbolic financial penalty may be one penalty too many when freedom of expression is at stake.

The Council of Europe’s guide identifies five areas where the risk of abuse is particularly high:

• Hate speech, which should only be criminalised where it amounts to genuine incitement to violence or discrimination;
• Defamation and insult, where the guide recommends decriminalisation and the use of civil remedies instead;
• Confidential information, where restrictions must be carefully balanced against the public interest in transparency;
• National security, a concept that is too often invoked as a pretext to silence dissent;
• Disinformation, for which criminal sanctions are considered both ineffective and disproportionate.

A common thread runs through all these areas: legal certainty, proportionality and restraint. Vague laws referring to “offence” or “decency” create room for arbitrary interpretation and politically motivated prosecutions that can severely restrict freedom of expression, ultimately weakening democratic institutions themselves.

In this regard, the data collected by the Council of Europe’s Platform for the Protection of Journalism and Safety of Journalists is particularly concerning: since 2019, the number of cases involving the detention and imprisonment of journalists has increased significantly.

This discussion also connects with another growing threat: Strategic Lawsuits Against Public Participation (SLAPPs). Italy still lacks dedicated anti-SLAPP legislation, despite the pressing need for one. These lawsuits are often filed not to win on the merits, but to exhaust, intimidate and silence those who speak out. While SLAPPs are typically civil proceedings, there is a growing risk that criminal law may also be weaponised for the same purpose, with even more damaging consequences. Even when criminal proceedings end in acquittal, they leave lasting scars in terms of financial costs, lost time, reputational damage and, above all, fear.

The European Court of Human Rights has made this point unequivocally: the mere opening of a criminal investigation can have a chilling effect. In Altuğ Taner Akçam v. Turkey, a case cited in the Council of Europe’s report, the Court found that the genuine risk of prosecution for “denigrating Turkishness” was, in itself, sufficient to interfere with freedom of expression.

For this reason, the Council of Europe reiterates that imprisonment for speech-related offences can only be justified in exceptional circumstances, such as direct incitement to violent hatred, and that even the lightest sanctions should be imposed only with great caution.

In Italy, despite years of advocacy by legal experts, civil society organisations and repeated judgments from the European Court of Human Rights, criminal defamation remains punishable by imprisonment. Every proposal to reform the law has either been rejected or dismissed as “not a priority.”

Ultimately, the question is a simple one: do we want a society that punishes words, or one that engages with them?

Democracy is measured by the space it leaves for critical voices, for those who challenge power, disturb the status quo, or say things we would rather not hear. Punishing speech does not make us safer. It only makes us quieter.

Photo by Gayatri Malhotra on Unsplash.