Hvilken Rolle Spiller Grunnloven § 100 I Høyesteretts Ytringsfrihetspraksis? (Free Speech in the Norwegian Supreme Court 2004-2011)

Abstract

The framework for this article is the relationship between a national and a supra-national protection of human rights: the Norwegian Constitution of 1814 (NC) and the European Convention on Human Rights (ECHR). These legal instruments share two constitutional elements: they place content-based limits on legitimately enacted or enforced laws, and they are adjudicated by courts. The article presents a case study analyzing how one right protected both by the NC and the ECHR – that of free speech – has been treated in Norwegian Supreme Court (NSCt) case law. This particular variant of dual rights protection is interesting from the perspective of international law influence onnational law. The NC § 100 was revised in 2004, i.a. with the aim of making it a modern and practicable national alternative to the ECHR art. 10, which had until then been the central source of free speech protection. However, as shown, the NSCt rarely uses the “new” NC § 100 as legal authority where relevant free speech case law from the European Court of Human Rights (ECtHR) exists.When NC § 100 is used, legal arguments are not derived from its text, but from assumptions about its legislative intent as extracted from statements in its preparatory works. Reliance on preparatory works is a historically central method of adjudication in Scandinavian and Norwegian law. This method does not, however, lead to significantly different outcomes than would result from assessing the same cases under ECtHR art. 10 case law. Through a peculiarly domestic interpretative approach, then, the NSCt does in fact protect the right of free speech in consistence with international standards. Consciously or not, it seems to use a traditional mode of legal justification as one vehicle for effectively implementing the ECHR in to Norwegian law. The article calls attention to the methodological questions raised by dual rights protection. These questions gain relevance following a January 2012 proposal to amend the NC with a human rights catalogue for its 200 year anniversary in 2014.