scholarly journals L’art pour l’art, czyli o tzw. kontratypie sztuki

2020 ◽  
pp. 131-154
Author(s):  
Jakub Hanc
Keyword(s):  
Criminal Law ◽  
Freedom Of Expression ◽  
Artistic Expression ◽  
Art Historians

L’art pour l’art, or so-called justifications of art The issue of so-called justification of art continues to be debated intensely in the applicable literature. Academic opinion increasingly highlights the need to include international and constitutional regulations regarding freedom of expression, particularly freedom of artistic expression, in the discourse. This article adopts a somewhat different approach and aims to analyze that non-statutory justification in the context of statements by critics, art historians, artists and lawyers. This type of approach makes it possible to assess whether the conditions excluding the unlawfulness of an act proposed in the science of criminal law are useful tools to facilitate the criminal law evaluation of specific factual circumstances by a judge.

scholarly journals Protecting Freedom of Expression in Multicultural Societies: Comparing Constitutionalism in Indonesia and Canada

Yuridika ◽  
2021 ◽  
Vol 36 (1) ◽  
pp. 75
Author(s):  
Herlambang Perdana Wiratraman ◽  
Sébastien Lafrance
Keyword(s):  
Rule Of Law ◽  
Hate Speech ◽  
Freedom Of Expression ◽  
Artistic Expression ◽  
Fundamental Freedom ◽  
The Rule Of Law ◽  
Legal Traditions ◽  
The Social ◽  
Effective Role ◽  
Similarities And Differences

This paper explores the similarities and differences in Indonesia and Canada regarding the constitutionally protected freedom of expression. While one may expect that both countries do not have much in common from a general standpoint, both do have several similarities in their approach to the interpretation and application of that freedom. The exercise of freedom of expression is also examined through the spectrum of jurisprudential examples from both countries, more specifically in the context of ‘hate speech’, ‘artistic expression’ and ‘language expression’.In addition, the social reality of both countries underlying the freedom of expression is uncovered. Further, the limitations imposed in both countries on that fundamental freedom are also discussed. Learning from the exercise that consisted in this paper to compare relevant laws of two countries, and despite the differences between their respective legal traditions, this study argues that freedom of expression, in two different countries such as Indonesia and Canada, can play a more effective role in a society with a multicultural character that complies with the rule of law.

Thailand’s Law on Criminal Online Falsehoods: A Critical Discussion

2021 ◽  
pp. 150-172
Author(s):  
Lasse Schuldt ◽  
Pudit Ovattananavakhun
Keyword(s):  
Criminal Law ◽  
Main Part ◽  
Freedom Of Expression ◽  
Critical Discussion ◽  
Fake News ◽  
Depth Analysis ◽  
Legislative Amendments ◽  
Principle Of Proportionality ◽  
The Right ◽  
Constitutional Jurisprudence

This article critically discusses the Thai criminal law applicable to online falsehoods, namely Section 14 para. 1(1) and (2) of the Act on Computer-Related Offences. Linking developments in Thailand to global and Southeast Asian fake news discourses, the article’s main part sheds light on several interpretational and constitutional complexities. Conflicting concepts of falsity and an uncertain ambit of protected interests are found to persist despite legislative amendments. As the right to freedom of expression in principle also protects false factual statements, recent constitutional jurisprudence on the principle of proportionality is applied to evaluate the prescribed level of criminal punishment. The article provides an in-depth analysis that contributes to the evolving scholarship on the challenges of regulatory responses to fake news.

TO RANT, VENT AND CONVERSE: PROTECTING LOW LEVEL DIGITAL SPEECH

2012 ◽  
Vol 71 (2) ◽  
pp. 355-383 ◽  
Author(s):  
Jacob Rowbottom
Keyword(s):  
Social Networks ◽  
Mass Media ◽  
Criminal Law ◽  
Freedom Of Expression ◽  
Digital Communications ◽  
Digital Content ◽  
Public Order ◽  
Wide Range ◽  
To Come ◽  
Legal Controls

AbstractSeveral recent cases have highlighted the range of legal controls that can be applied to expression on social networks and other amateur digital content. This article identifies three trends in the regulation of digital communications. First, such communications are subject to a wide range of laws, including those primarily regulating the mass media, public order and targeted communications. Second, the persistence and searchability of digital messages make such communications more likely to come to the attention of litigators and prosecutors. Thirdly, that the established approach to freedom of expression under Article 10 of the ECHR tends to protect speech that is deemed to be of “high value”, and therefore does little to protect much internet content. This article calls for some greater protection to be afforded to communications that are casual and amateur. The freedom to converse outlined in this article does not call for absolute protection, but seeks to ensure that any controls on expression are proportionate. In particular, alternatives to the criminal law are considered.

What Can Philosophy Teach Us About Multiculturalism?

Dialogue ◽  
1997 ◽  
Vol 36 (3) ◽  
pp. 607-614
Author(s):  
Arthur Ripstein
Keyword(s):  
Political Philosophy ◽  
Criminal Law ◽  
Cultural Difference ◽  
Freedom Of Expression ◽  
Policy Issues ◽  
Language And Culture ◽  
Contemporary World ◽  
Shared Language ◽  
Hard Cases

Multiculturalism is an increasingly important topic for philosophers, largely because of the practical problems posed by diversity. Traditional political philosophy had little to say about cultural difference, taking the existence of a shared language and culture pretty much for granted. The multicultural societies of the contemporary world make such assumptions untenable. Traditional questions of fairness and sovereignty find hard cases in such policy issues as immigration, education, criminal law, and freedom of expression.

The Parody Exception in Copyright Law

2019 ◽  
Author(s):  
Sabine Jacques
Keyword(s):  
Freedom Of Expression ◽  
The United States ◽  
Copyright Law ◽  
Fundamental Rights ◽  
Moral Rights ◽  
Artistic Expression ◽  
Economic Rights ◽  
The United Kingdom ◽  
Ultimate Objective ◽  
The Right

Parodies have been created throughout times and cultures. A glimpse at the judicial latitude generally afforded to parodies, satires, caricatures, and pastiches demonstrates the social and cultural value of this particular form of artistic expression. With the advent of technologies and the evolution of copyright legislation, creative endeavours in the form of parody were rejuvenated but became unlawful. While copyright law grants exclusive rights to right-holders, these rights are not absolute. Legislation includes specific exceptions, which preclude right-holders from exercising their prerogatives in particular cases which foster creativity and cultural diversity within that society. The parody exception pertains to this ultimate objective by permitting users to reproduce copyright-protected materials for the purpose of parody. To understand the meaning and scope of the parody exception, this book examines and compares five jurisdictions which differ in their protection of parodies: France, Australia, Canada, the United States, and the United Kingdom. It is concerned with finding an appropriate balance between the protection awarded to right-holders and the public interest. This is achieved by analysing the parody exception to the economic rights of right-holders, the preservation of moral rights, and the interaction of the parody exception with contract law. As parodies constitute an artistic expression protected under the right to freedom of expression, this book also considers the influence of freedom of expression on the interpretation of this specific copyright exception. Furthermore, this book aims at providing guidance on how to resolve disputes where fundamental rights are in conflict.

CRIMINAL PROSECUTION OF HOLOCAUST DENIAL IN GERMANY

2020 ◽  
Vol 10 (3) ◽  
pp. 115-120
Author(s):  
ANNA SEREBRENNIKOVA
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Freedom Of Expression ◽  
Criminal Liability ◽  
Criminal Prosecution ◽  
World War ◽  
Public Attention ◽  
Holocaust Denial ◽  
Judicial Practice

Currently, they are attracting public attention and causing public resonance problems associated with the reassessment of the feat of the Soviet people in World War II. Various kinds of insinuations arise related to the denial of the persecution and mass extermination of Jews living in Germany, in the territory of its allies and in the territories occupied by them during the Second World War; the systematic persecution and extermination of European Jews by Nazi Germany and collaborators during 1933-1945. Practice shows that those guilty of Holocaust denial try to avoid criminal liability and influence judicial practice, referring to freedom of speech enshrined in Art. 5 Abs. 1 of the Basic Law of Germany. The purpose of the article. Investigate the institution of criminal responsibility for Holocaust denial in Germany. Based on an analysis of the norms of criminal law and judicial practice in Germany in specific criminal cases, investigate the difficulty of delimiting criminal liability for denying the Holocaust freedom of expression. Methodology and methods. For the purposes of this article, the author uses the methods of analysis, synthesis, induction, diduction, as well as comparative legal, historical legal and historical comparative methods. Conclusions. After conducting a study, the author concludes that in Germany the issue of criminal liability for Holocaust denial is complex. The article points out the fact of heterogeneity of court decisions, analysis of judicial practice shows that this issue is resolved extremely ambiguously. Despite this, the author points out the high role of the legislator and the practice of law enforcement in shaping the right attitude to historical events, the high role of peoples in certain significant facts that are part of the foundation of historical and cultural heritage. Scope of the results. This work may be of interest to students of higher educational institutions, as well as graduate students interested in criminal law of foreign countries. The article can be used by teachers of law schools as an addition to the educational material.

scholarly journals Criminalising Defamation of Religion and Belief

2014 ◽  
Vol 22 (4) ◽  
pp. 351-375
Author(s):  
Marloes van Noorloos
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Criminal Law ◽  
Freedom Of Expression ◽  
European Convention ◽  
Political Rights ◽  
Civil And Political Rights ◽  
Theoretical Considerations ◽  
Defamation Law

This article deals with the role of criminal law in dealing with defamatory expressions about religion or belief. Defamation of religion and belief is a form of indirect defamation ‘via identification’ which, as the discussion about the Dutch group defamation law shows, stretches up the notion of ‘group defamation’ — a crime which requires that (groups of) persons are insulted because they belong to a religious group. This contribution investigates whether European states can legitimately criminalise (certain forms of) defamation of religion and belief, in light of the European Convention on Human Rights, the United Nations framework (particularly the International Covenant on Civil and Political Rights) and legal theoretical considerations. The article shows how problematic it is for the criminal law — in light of the rights to freedom of expression and freedom of religion, as well as the ultima ratio principle — to combat such speech.

scholarly journals The criminalisation of symbols of the past: expression, law and memory

2014 ◽  
Vol 10 (3) ◽  
pp. 295-314 ◽  
Author(s):  
Agata Fijalkowski
Keyword(s):  
Criminal Law ◽  
Transitional Justice ◽  
Freedom Of Expression ◽  
The Political ◽  
Concerted Effort ◽  
The Past ◽  
Constitutional Tribunal ◽  
Historical Comparative ◽  
The Baltic ◽  
Political Realities

AbstractThis paper examines the criminalisation of symbols of the past. It considers the 2011 judgment of the Polish Constitutional Tribunal. In this compact and well-ordered decision, the Tribunal, with reference to key European examples, assessed critically the constitutionality of criminal law provisions that prohibit the dissemination and public use of symbols of the past pertaining to fascist, Communist or other totalitarian content. Its ruling, which found amendments to the law in Poland that tightened up restrictions on the use of totalitarian symbols to be unconstitutional, is considered within three important contexts: first, the broad European context, where the concept of totalitarian crimes has become subject to EU human rights legislation relating to the freedom of expression; second, the context of post-dictatorial Europe, where specific states have addressed the use of totalitarian symbols in their respective criminal laws; and finally, the context of transitional justice, where criminalising symbols of the past has become a central and permanent feature in European narratives about justice. Significantly, these cases reveal the temporal element of transitional justice. The paper discusses the two case-studies most relevant to Poland, namely those in Germany and Hungary. Reference is also made to the Baltic States, which, together with Poland, have made a concerted effort to bring the notion of totalitarian crimes and histories to the attention of Europe. The paper concurs with the contention that cases concerning the use of symbols provide an excellent illustration of where memory and law intersect. Using historical, comparative and contextual methodologies the paper demonstrates the legal and philosophical complexities of criminal uses of symbolism, the political realities, and the key dimension of transitional justice and its relationship to expression, law and memory.

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