Tomáš Gábriš – Ľubomír Zlocha – Ondrej Kobyda
Slovak Academy of Sciences, Institute of State and Law, Bratislava, Slovak Republic
Introduction: The Slovak Regulatory Trilemma
Slovakia’s legal landscape regarding freedom of expression is currently undergoing significant instability. While the system is anchored in a robust constitutional ban on censorship, traditionally interpreted narrowly by the courts, this foundation is constantly being tested.
Recent data from CEDMO (November 2024), namely, suggests that this is not just a two-way conflict but a “trilemma” involving public sentiment. Surprisingly, 74% of Slovaks support state restrictions on media outlets that spread disinformation. This creates a paradox where the majority of the public effectively demands regulations that legal experts might classify as impermissible censorship. Consequently, the government can claim political legitimacy for controversial measures by citing the “will of the majority”, placing constitutional principles in direct conflict with both executive power and public opinion.
This public demand for regulation is nuanced by deeper demographic data. According to NMS Market Research (July 2025), approximately 37% of the Slovak population shows susceptibility to hoaxes, with 8% identified as ‘strong supporters’ of such narratives. Crucially, research from the Slovak Academy of Sciences (CSPV SAV) identifies a psychological ‘illusory superiority’ effect: individuals most confident in their ability to detect disinformation are statistically among the most likely to believe it, complicating the effectiveness of purely educational or soft-law interventions.
1. The Constitutional Framework: Absolute or Relative Prohibition?
The primary constitutional safeguard against prior restraint by the state is found in Article 26, paragraph 3, of the Constitution of the Slovak Republic, which explicitly states: “Censorship is prohibited”. This provision serves as the primary barrier against state interference. However, this ban is not without limits. Paragraph 4 of the same article permits restrictions necessary for protecting national security, public order, morality, or the rights of others.
The judiciary has strictly delineated the boundaries of these exceptions. In its seminal ruling, PL. ÚS 7/96, the Constitutional Court determined that any restriction on expression must be construed narrowly and pass a strict test of proportionality. [1] This precedent establishes a high constitutional bar, requiring authorities to prove that any limitation not only pursues a legitimate goal but is also the least intrusive method available to achieve it.
A significant hurdle in this legal interpretation is the lack of precise legal definitions. Slovak law currently lacks statutory definitions of “disinformation” or “hate speech.” This “definitional vacuum” was highlighted by the Constitutional Court in judgment PL. ÚS 26/2019. While the Ministry of Interior has proposed initiatives to codify ‘hate speech’ as a specific criminal offence, the current lack of clarity often forces judges to balance expression against vague concepts of public order.
However, a new dimension of constitutional scrutiny emerged in 2025 regarding “economic censorship”. In the pending case, PL. ÚS 6/2025, the Constitutional Court suspended the effectiveness of legislative amendments to the Freedom of Information Act that sought to introduce fees for “extraordinarily extensive” information searches. The Court’s preliminary reasoning suggested that administrative financial barriers could constitute a “chilling effect” on the freedom of information. This signals a judicial willingness to scrutinize not only direct content regulation but also indirect bureaucratic impediments that effectively restrict the free flow of information, aligning Slovak jurisprudence with evolving ECtHR standards.
2. Judicial Interpretations: The “Dual Jurisprudence” of Censorship
Slovak legal discourse on freedom of expression is characterized by persistent uncertainty regarding the precise interpretation of the term “censorship”. This uncertainty stems in part from the lack of a legal definition of censorship in the legal system, leading to what can be described as a “dual jurisprudence” of the Constitutional Court of the Slovak Republic. The core of the dispute lies in the relationship between the absolute prohibition of censorship in Article 26(3) and the allowable restrictions in Article 26(4).
A. The Broad Interpretation (2009). An older line of reasoning, exemplified by the Senate ruling III. ÚS 42/09 adopted an extensive view. Although the case concerned an ex post intervention rather than preventive censorship, the Court linked the state’s assessment of the “correctness” of opinions directly to the prohibition on censorship. This approach implies that even subsequent state interference motivated by political considerations could be deemed unconstitutional censorship.
B. The Narrow “Orthodox” Interpretation (2019). In contrast, a more recent Plenary ruling (PL. ÚS 26/2019) regarding a moratorium on opinion polls took a different path. Despite the case involving an explicit ex-ante ban, the Court bypassed Article 26(3) and applied the proportionality test under Article 26(4) instead. This solidified the “orthodox model,” in which “censorship” is defined strictly as an institutional system of prior approval.
This plenary ruling confirmed the strict, so-called “orthodox model” of interpretation. According to this approach, “censorship” (Paragraph 3) is absolutely prohibited but is understood narrowly as a state-administered, preventive system of content approval. Conversely, all other interventions, whether subsequent sanctions or preventive measures such as moratoria, are considered only “restrictions” under Paragraph 4, subject to the test of necessity in a democratic society.
3. Balancing Rights in Practice: Key Case Law
Despite strong prohibitions on censorship, Slovak courts acknowledge that freedom of speech is not absolute and must be weighed against other rights, often following the guidance of the European Court of Human Rights (ECtHR).
The Ringier Axel Springer Cases. Domestic courts apply a proportionality test in such cases. The Ringier Axel Springer cases (e.g., application no. 41262/05, 37986/09, and 26826/16)[2] have been pivotal. In these rulings, the ECtHR repeatedly found that Slovak courts had violated Article 10 of the European Convention on Human Rights (ECHR) by failing to properly balance the right to privacy with the public’s interest in receiving information on matters of public concern. These judgments compelled the domestic judiciary to adopt a more nuanced approach, distinguishing between factual statements and value judgments.
Mazurek and Rostas: Defining Hate Speech Limits. In the Milan Mazurek case (2019), the Supreme Court upheld the conviction of a Member of Parliament for anti-Roma hate speech. The Court’s reasoning explicitly stated that freedom of expression is not an absolute right and does not provide a shield for hate speech that incites discrimination and violence. This judgment authoritatively established that the criminal prosecution of such speech is not unconstitutional censorship but a necessary and legitimate limitation on expression.[3] Similarly, the conviction of editor Tibor Rostas for anti-Semitic content set a precedent that these laws apply equally to public figures and media representatives.
4. The Implementation Gap: Website Blocking and Regulation
While courts debate legal definitions, the actual enforcement of content regulation suffers from a significant “implementation gap.” The main regulatory instrument is the National Security Authority’s (NBÚ) power to block websites that pose hybrid threats or contain harmful content.
This legislative vacuum was decisively filled on January 1, 2025, with the entry into force of the amendment to the Cybersecurity Act (Act No. 366/2024 Coll.), which transposes the EU NIS2 Directive. The overhauled § 27b re-establishes the NBÚ’s authority to block “harmful content” and “harmful activities”, explicitly including serious disinformation and hybrid threats.
Crucially, to satisfy constitutional requirements and avoid the classification of administrative censorship, the new mechanism introduces a mandatory judicial prior restraint model. The NBÚ must now submit a reasoned proposal for blocking to the Supreme Administrative Court (NSS SR), which is obliged to decide on the authorization within 15 days. This effectively shifts the burden of legitimacy from the executive to the judiciary, transforming the “implementation gap” into a procedural “judicial check.” While this satisfies the “Orthodox” constitutional interpretation by removing arbitrary executive power, questions remain regarding the speed of this judicial response in the face of viral disinformation campaigns. Still, even under the previous rules, the NBÚ demonstrated limited effectiveness due to insufficient technical and staffing capacity.[4] This creates a paradox: Slovakia has the legal theory of censorship prohibition and the legal tools to block harmful content, but lacks the institutional capacity or political will to enforce them effectively in the online space.[5]
5. The Deepfake Incident: A Failure of Reactive Tools
The inadequacy of the current framework was starkly illustrated during the 2023 parliamentary elections, underscoring the dangers of relying on ex post legal remedies rather than proactive measures.
Two days before the elections, a deepfake audio recording surfaced online, falsely depicting a conversation between Progressive Slovakia (the largest opposition party) leader Michal Šimečka and journalist Monika Tódová about vote-rigging. This occurred during the legally mandated 48-hour election silence. While fact-checkers identified the audio as AI-generated, no practical legal tools were available to prevent its dissemination.
Although fact-checkers quickly identified the audio as AI-generated, the state lacked the legal tools to halt its spread in real time. The incident demonstrated that ex post remedies, such as criminal statutes or protections for personality rights, are ineffective against rapid digital threats. This failure serves as a stark case study of democratic vulnerability, where legal frameworks intended to protect speech inadvertently paralyzed the response to a direct assault on the electoral process.[6]
In direct response to the vulnerabilities exposed by the 2023 deepfake incident, the legislative body moved to criminalize specific forms of sophisticated electoral interference. The amendment to the Criminal Code (Act No. 416/2025 Coll.) introduced the new offence of “Obstruction of the Electoral Campaign” (§ 351a). This provision penalizes violations of campaign regulations explicitly when committed “in connection with a foreign power”. By focusing on the foreign origin and hybrid nature of the interference rather than the speech’s content, the legislature sought to bypass the constitutional minefield of defining “truth” and instead address the security dimension of the Regulatory Trilemma.
Furthermore, the operationalization of the Council for Media Services (RpMS) as the Digital Services Coordinator under the EU Digital Services Act (DSA) in 2024/2025 provided a secondary regulatory layer. The Council now possesses the competence to sanction online platforms for failing to mitigate systemic risks – including the spread of manipulated electoral content – thereby creating a dual-track system of defence: judicial blocking of infrastructure via the NBÚ and administrative regulation of content moderation via the RpMS.
Conclusion
Slovakia stands as a “laboratory” for the conflict between freedom of expression and the regulation of modern digital threats.[7] The country possesses a robust constitutional prohibition of censorship and a judiciary capable of nuanced interpretation. However, the “trilemma” of conflicting pressures from the Constitution, the state executive, and public opinion creates a volatile environment. Slovakia, namely, faces what researchers call the “suspicious mindset trap”. Data from the CSPV SAV (2025) suggests that belief in disinformation is not merely a consequence of institutional distrust, but an active driver of it. The 2025 reintroduction of blocking powers under the aegis of the Supreme Administrative Court, combined with new criminal provisions against foreign electoral interference, suggests a shift from a passive state to a “defensive democracy” model. However, the reliance on judicial authorization for blocking creates a new tension between the speed required to counter viral digital threats and the deliberation required for constitutional compliance. This creates a self-reinforcing cycle where any state-led regulatory effort – no matter how legally sound – is reflexively interpreted by a large segment of the public as a tool of the very censorship the Constitution prohibits.
[1] Decision of the Constitutional Court of the Slovak Republic, file no. II. ÚS 7/96. (online). (cited 2025-28-12). Available at: https://merit.slv.cz/PL.%C3%9AS7/96
[2] Decision of the ECtHR, no. 41262/05. (online). (cited 2025-28-12). Available at: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-105825%22]}
[3] Mikušovič, Dušan (2019): Mazurek v parlamente končí, súd mu potvrdil vinu za rasistické reči v rádiu. Dennikn. (online). (cited 2025-28-12). Available at: https://dennikn.sk/1571676/mazurek-v-parlamente-konci-sud-mu-potvrdil-vinu-za-rasisticke-reci-v-radiu/
[4] Sokol, Pavol – Bachňáková Rózenfeldová, Laura (2025): Content blocking mechanism in cybersecurity: Slovakia case study. SpringerOpen. (online). (cited 2025-28-12). Available at: https://jis-eurasipjournals.springeropen.com/articles/10.1186/s13635-025-00190-x
[5] Správa o kybernetickej bezpečnosti v Slovenskej republike v roku 2024. Národný bezpečnostný úrad. (online). (cited 2025-28-12). Available at: https://www.nbu.gov.sk/data/att/3305.pdf
[6] Rojo, Magdalena (2024): Inside Slovakia’s crackdown on free media. Fairplanet. (online). (cited 2025-28-12). Available at: https://www.fairplanet.org/story/inside-slovakias-crackdown-on-free-media-fico-assassination-attempt/
[7] Rojo, Magdalena (2024): Inside Slovakia’s crackdown on free media. Fairplanet. (online). (cited 2025-28-12). Available at: https://www.fairplanet.org/story/inside-slovakias-crackdown-on-free-media-fico-assassination-attempt/