Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Freedom of expression

 

International legal framework

Freedom of opinion and expression is guaranteed by article 19 of the International Covenant on Civil and Political Rights (ICCPR). This provision states that "[e]veryone shall have the right to hold opinions without interference" (article 19(1)); and that "[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice" (article 19(2)).

As the Human Rights Committee observed in its General Comment No. 34 on article 19 of ICCPR (2011), freedom of opinion means that an individual also has the right to change an opinion whenever and for whatever reasons a person so freely chooses (CCPR/C/GC/34, para. 9). Freedom of expression includes the right to seek, receive and impart information and ideas of all kinds regardless of frontiers; the expression and receipt of communications of every form of idea and opinion capable of transmission to others, such as political discourse, canvassing, discussion of human rights, journalism, teaching and religious discourse. Ideas can be expressed through spoken, written, sign language and non-verbal expression as images and art objects (Human Rights Committee CCPR/C/GC/34, para. 9). Means of expression include books, newspapers, pamphlets, posters, banners, dress, legal submissions, audiovisual, electronic and Internet-based modes of expression (Human Rights Committee CCPR/C/GC/34, Para. 9). The freedom to express an opinion incorporates also the right not to express one (Human Rights Committee CCPR/C/GC/34, para. 10).

As with freedom of religion, freedom of opinion and expression cannot be restricted in the forum internum, i.e. freedom to have an opinion, as the Human Rights Committee emphasized in its General Comment No. 34 on article 19 of ICCPR (CCPR/C/GC/34, para. 9). Only those limitations specified by article 19(3) are permissible, which relate to the forum externum i.e. freedom to manifest an opinion.

Significantly, the right of freedom of opinion can never be restricted or suspended, not even in situations of emergency. As the Human Rights Committee stated:

[A]lthough freedom of opinion is not listed among those rights that may not be derogated from pursuant to the provisions of article 4 of the Covenant, it is recalled that, "in those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4". Freedom of opinion is one such element, since it can never become necessary to derogate from it during a state of emergency. (CCPR/C/GC/34, para. 5).

This approach reflects too the opinion of a former United Nations Special Rapporteur on freedom of opinion and expression who was of the view that the imposition of restrictions should be regarded as an exceptional measure only (General Assembly, Human Rights Council report 7/14, para. 49).

In terms of what restrictions are permissible, article 19(3) of ICCPR provides that where provided for by law (paras. 24-27) and where necessary (para. 33), limitations on article 19 rights may be made to "respect the rights or reputations of others", or "[f]or the protection of national security or of public order ( ordre public), or of public health or morals." Additionally, as with any restriction on ICCPR rights, any limitation under article 19(3) must be proportionate (para. 34). Significantly, reliance upon article 19(3) should never put in jeopardy article 19 rights. For example, under article 19(3), States are not permitted to ban Internet websites simply because of their content being critical of the government; any restrictions on content must satisfy the article 19(3) criteria to be lawful (Human Rights Committee concluding observations CCPR/CO/84/SYR). Moreover, in terms of its parameters, it is never permissible under article 19(3) for a State to "hara[ss], intimidat[e] or stigmatiz[e] a person", including through such acts as their arrest, detention or trial, for reasons connected with their opinions (para. 9). A common source of concern here has been erosive effect of counter-terrorism legislation on freedom of opinion and expression together with related human rights such as that of privacy (General Assembly, Human Rights Council report 7/14, para. 49).

Similarly, with respect to freedom of expression, individuals should be free to "seek, receive and impart information and ideas of all kind", even where it has the potential to be deeply offensive, so long as it does not fall within the parameters of articles 19(3) or 20 ICCPR restrictions (Human Rights Committee views CCPR/C/70/D/736/1997, paras. 50-52). Article 20 prohibits propaganda for war, as well as "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" (article 20). Such issues can pose particular challenges for States, especially in their efforts to counter violent extremism (see further Module 2), where it can be a fine line to tread between what is permissible (even if offensive) and impermissible speech. During counter terrorism efforts, there is a risk that States unduly restrict free speech on grounds of national security, including media outlets as well as the exercise of legitimate political rights (see General Comment No. 34 CCPR/C/GC/34, paras. 13-17, 20, 23, 30). In turn, this can have a negative impact upon other fundamental rights, including those of assembly and association, with which article 19 is regarded as being interconnected and mutually reinforcing (para. 4). As a former United Nations Special Rapporteur on freedom of opinion and expression observed: "the effective enjoyment of the right to freedom of opinion and expression, right to peaceful assembly and freedom of association are central elements that mark the difference between democracy and terror" (General Assembly, Human Rights Council 7/14, para. 53).

Significantly too, the Special Rapporteur further noted that the requirements of both article 4(1) and article 19(3) in relation to limitations imposed on freedom of opinion and expression were often not met, in part attributable to States misusing sentiments of insecurity to attack "free media, investigative journalism, political dissidence, and human rights monitoring and reporting" (General Assembly, Human Rights Council 7/14, para. 51). In turn, this can impact adversely on the ability of these and other entities to ensure proper accountability and to limit levels of impunity often arising in a counter-terrorism context in relation to States practices. As the Human Rights Committee further observed in its General Comment No. 34, "[f]reedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights" (CCPR/C/GC/34, para. 3). Yet, the associated rights and obligations are commonly not fully implemented and/or enforced within national legal systems as is required under ICCPR (e.g. paras. 7-8).

Regional instruments and approaches

 

The African region

Within the African regional human rights framework, the relevant provision is article 9(1) of the African Charter which simply states that "every individual shall have the right to receive information" (article 9(1)) and that "[e]very individual shall have the right to express and disseminate his opinions within the law. As with the inter-American system, a key focus area has been the protection of journalists. This is illustrated by the Resolution on the Adoption of the Declaration of Principles on Freedom of Expression in Africa (2002) in which the African Commission on Human and Peoples' Rights (ACommHPR) strongly condemned attacks on media practitioners in the following terms:"[A]ttacks such as the murder, kidnapping, intimidation of and threats to media practitioners and others exercising their right to freedom of expression, as well as the material destruction of communications facilities, undermines independent journalism, freedom of expression and the free flow of information to the public" (article 11(1)). Under the Declaration, States are exhorted to prevent and investigate attacks on journalists, as well as to punish perpetrators and ensure remedies for the victims (article 11(2)).

The Inter-American region

The American Convention on Human Rights, in article 13(1), details the scope of the freedom as follows: "[E]veryone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice". One priority issue in the region (in common with other regions) has been the importance of protecting journalists and other media outlets, as one of the main conduits for exercising this fundamental freedom, including as an important medium for holding governments to account if and when necessary. This was reflected in a resolution adopted by the General Assembly of the Organization of American States in 2017 which reiterated that "journalism must be practiced free of threats, physical or psychological aggression, or other acts of intimidation" (Organization of American States, 2017). In doing so, the Assembly urged Member States "to implement comprehensive measures for prevention, protection, investigation and punishment of those responsible, as well as to put into action strategies to end impunity for crimes against journalists and share good practices" (Organization of American States, 2017, para. 2).

The European region

The key provision under the European Convention on Human Rights (ECHR) is article 10 which provides that: "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 ..." (Article 10(1)). The protection of journalists is similarly afforded particular attention in by the Council of Europe, notably within its Guidelines on Protecting Freedom of Expression and Information in Times of Crisis (2007). One concern, in addition to the physical safety of journalists, has been that "media professionals should not be required by law-enforcement agencies to hand over information or material (e.g., notes, photographs, audio and video recordings) gathered in the context of covering crisis situations nor should such material be liable to seizure for use in legal proceedings …" (para. 14). Not only may such actions impact upon the confidentiality of journalists' sources thereby putting both parties at increased risk, but ultimately such actions undermine the ability of the media to hold governments effectively to account, including when the rule of law is being eroded in counter-terrorism contexts.

The Asian region

Within the Asian region, some provision is made for the protection of freedom of opinion and expression. The key, non-binding, provision under the ASEAN Human Rights Declaration is article 23, which states that "[e]very person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person's choice." Notably, there is no article 19(3) of ICCPR equivalent in terms of whether, and if so in what circumstances, such rights may be restricted.

The Middle East and Gulf regions

Provision is made too in the Arab Charter in article 30(1), which provides that: "[E]veryone has the right to freedom of thought, conscience and religion and no restrictions may be imposed on the exercise of such freedoms except as provided for by law". As was noted in relation to freedom of religion, the reference to "law" may refer to restrictions under Shari'ah, including as a source of national law which may affect the meaning of freedom of expression et al. in national contexts. With respect to the Organisation of Islamic Cooperation's (OIC) Cairo Declaration the relevant provision is article 22, which states that "[e]veryone shall have the right to express his opinion freely" so long as this is not "contrary to the principles of the Shari'ah" (article 22(a)). Though the Declaration acknowledges "that information is a vital necessity to society" (article 22(b)), it limits this right to information that is not "exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith". The wording of article 22(c) is more like that of article 20 of ICCPR in prohibiting the incitement of "nationalistic or doctrinal hatred or .... anything that may be an incitement to any form or racial discrimination".

Restrictions

With respect to those restrictions permitted along the same or similar lines as article 19(3) of ICCPR, the drafting of the relevant ECHR and American Convention texts largely mirrors these. Furthermore, this has been reflected within their accompanying jurisprudence. For example, the ECtHR has held that any interference with a person's freedom of expression must be proportionate and necessary in a democratic society ( Falakaog ̆lu and Saygılı v. Turkey, 2006), including for reasons of protecting public order and preventing crime as part of the fight against terrorism ( Müdür Duman v. Turkey, 2015). In 2017, the Court specified that although freedom of expression could be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions still had to be justified by relevant and sufficient reasons and respond to a pressing social need in a proportionate manner ( Döner and Others v. Turkey, 2017).

 
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