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Freedom of Expression

Introduction
Rights at Stake
International and Regional Instruments of Protection and Promotion
National Protection and Service Agencies
Advocacy, Educational and Training Materials
Other Resources


Introduction

Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first session in 1946, before any human rights declarations or treaties had been adopted, the UN General Assembly adopted resolution 59(I) stating "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated."

Freedom of expression is essential in enabling democracy to work and public participation in decision-making. Citizens cannot exercise their right to vote effectively or take part in public decision-making if they do not have free access to information and ideas and are not able to express their views freely. Freedom of expression is thus not only important for individual dignity but also to participation, accountability and democracy. Violations of freedom of expression often go hand in hand with other violations, in particular the right to freedom of association and assembly.

Progress has been made in recent years in terms of securing respect for the right to freedom of expression. Efforts have been made to implement this right through specially constructed regional mechanisms. New opportunities are emerging for greater freedom of expression with the internet and worldwide satellite broadcasting. New threats are emerging too, for example with global media monopolies and pressures on independent media outlets.



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Rights at Stake

(a) The right to freedom of expression and opinions

The right to freedom of expression upholds the rights of all to express their views and opinions freely. It is essentially a right which should be promoted to the maximum extent possible given its critical role in democracy and public participation in political life. There may be certain extreme forms of expression which need to be curtailed for the protection of other human rights. Limiting freedom of expression in such situations is always a fine balancing act. One particular form of expression which is banned in some countries is “hate speech”.

There may be some views which incite intolerance or hatred between groups. This raises the debate about whether such hate speech, as it is known, should be restricted. An extreme example of this is the use of the mass media to promote genocide or racially-motivated attacks, such as the role played by Radio-Télévision Libre des Milles Collines in the Rwandan genocide in 1994. In some countries hate speech laws have been introduced to outlaw such expression. There is a fine balance between upholding the right to freedom of expression and protecting other human rights. The success of such laws has often been questionable and one of the consequences has been to drive hate speech underground. While it may be necessary to ban certain extreme forms of hate speech and certainly to make its use by the state prohibited, parallel measures involving the promotion of a pluralistic media are essential to give voice to counter viewpoints.


(b) The right to seek, receive and impart information and ideas

Restrictions on individual journalists: The freedom to impart information can come under attack in a variety of ways and particularly impinge on the freedom of the press. Pressure on journalists poses a very significant threat.

Informal censorship refers to a variety of activities by public officials - ranging from telephone calls and threats to physical attacks - designed to prevent or punish the publication of critical material. The right of journalists to protect their sources is also important in ensuring the free flow of information on matters of public interest. International and regional human rights mechanisms have asserted that journalists should never be required to reveal their sources except under certain conditions (it is necessary for a criminal investigation or the defence of a person accused of a criminal offence; they are ordered to do so by a court, after a full opportunity to present their case; necessary’ implies that the information cannot be obtained elsewhere, that it is of great importance and that the public interest in disclosure significantly outweighs the harm to freedom of expression from disclosure).

Privacy laws can impede investigative reporting aimed at exposing corrupt and illegal practices. Privacy laws, while important in protecting the private affairs of individuals, should not be misused to deny discussion of matters of public concern.

The media should be free to report on conflicts and public scrutiny in such situations is essential to controlling humanitarian and human rights abuses. Exclusion of the media is a very severe restriction on freedom of expression and information in this regard and restrictions should only be placed where there are clear safety concerns. Elections are other times when the freedom of the press to provide balanced and impartial information becomes critical and more vulnerable to repression by political actors.

Structural restrictions on the press: These call into question whether the media are free from political control at an institutional level. Restrictions can take the form of press laws which allow for government interference in the media, or which impose unwarranted restrictions on published content. All bodies with regulatory authority over the media, print or broadcast, should be fully independent of government. Processing of license applications should be open and transparent, with decisions about competing applications being made on the basis of pre-established criteria in the interest of the public’s right to know. In addition, the powers of broadcast regulatory bodies should be limited to matters relating to licensing and complaints.

Media monopolies are another way in which the right to receive information from a variety of sources is restricted. State broadcasting monopolies do not serve the public interest but then in some smaller markets, a monopoly newspaper may be the only way to provide access to local news. Rules on monopolies need to be carefully designed to promote plurality of content, without providing the government with an opportunity to interfere in the media.

Other examples of “structural censorship” i.e. use of economic measures by governments to control information, include preferential allocation of government advertising, government control over printing, distribution networks, or newsprint and the selective use of taxes.

Access to information held by public authorities is another aspect of the freedom of information debate. International/regional human rights mechanisms have asserted the public’s right to know and urged governments’ to adopt legislation along the following lines: the legislation should be guided by the principle of maximum disclosure; public bodies should be under an obligation to publish key information; public bodies should actively promote open government; exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests; individuals should have the right to appeal against a refusal to disclose information to an independent administrative body, which operates in a fair, timely and low-cost manner; the legislation should provide protection for ‘whistleblowers’ who release information on wrongdoing.

New technologies, such as the Internet, and satellite and digital broadcasting, offer unprecedented opportunities to promote freedom of expression and information. Action by the authorities to limit the spread of harmful or illegal content through the use of these technologies should be carefully designed to ensure that any measures taken do not inhibit the enormous positive potential of these technologies. The application of rules designed for other media, such as the print or broadcast sectors, may not be appropriate for the internet. Obviously, limitations on such technologies will be a fine balancing act between defending the freedom of expression and information and ensuring protection from abuses e.g. spread of child pornography.

(c) These rights can only be restricted in certain circumstances: to protect the rights and reputations of others or to protect national security, public order, public health or morals.

Restrictions in the name of public order and national security can often be excessively broad and vague. International and regional bodies have said that such restrictions should only be imposed where there is a real risk of harm to a legitimate interest meaning there is a significant risk of imminent harm; the risk is of serious harm, that is to say violence or other unlawful action; there is a close causal link between the risk of harm and the expression; the expression was made with the intention of causing the harm.

Criminal sanctions accompany such restrictions. Often the expression in question may not pose a clear risk of serious harm to public interest and still it is subjected to penal sanctions, including imprisonment. International/regional human rights mechanisms on freedom of expression have concluded that imprisonment should not be imposed except in the very most extreme circumstances where there is intentional incitement to imminent and serious lawless action.

Criminal defamation laws still exist in some states to protect public figures from injury to their reputations. Such laws have a limiting effect on freedom of expression and are frequently abused in cases where there is no public interest at stake. International and regional human rights institutions have recommended that such laws should be abolished and replaced with civil defamation laws.

Civil defamation laws can also be misused to censor criticism and debate concerning public issues. International/regional human rights bodies have said that civil defamation laws should observe the following principles: public bodies should not be able to bring defamation actions; truth should always be available as a defence; politicians and public officials should have to tolerate a greater degree of criticism; publications regarding matters of public interest which are reasonable in all the circumstances should not be considered defamatory; damage awards should be proportionate to the actual harm caused and should take into account alternative remedies such as apologies and corrections.

Courtroom restrictions: There are various laws falling under the contempt of court rubric which restrict the flow of information in order to protect the administration of justice. Some restrictions exist to ensure a fair trial and to avoid a “trial by the media.” Other restrictions are more to do with protecting the court from being “scandalised”. There are increasing questions about whether freedom to criticise the judiciary should be limited in this way. Having cameras in the courtroom has become a lively area of debate in recent years. Again, as with many other questions to do with the freedom of expression, there is a fine balance to be struck between the desirability of opening up the judicial system on the one hand and protecting the privacy of victims and their families on the other.



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International and Regional Instruments for Protection and Promotion

International legal instruments take the form of a treaty (also called agreement, convention, or protocol) that binds the contracting states to the negotiated terms. When negotiations are completed, the text of a treaty is established as authentic and definitive and is "signed" by the representatives of states. A state can agree to be bound to a treaty in various ways. The most common are ratification or accession. A new treaty is ratified by those states that have negotiated the instrument. A state that has not participated in the negotiations may, at a later stage, accede to the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states have ratified or acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be withdrawn at any time. In some countries, international treaties take precedence over national law; in others a specific law may be required to give a ratified international treaty the force of a national law. Practically all states that have ratified or acceded to an international treaty must issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully effective on the national territory.

The following international instruments determine standards for the protection of the right to freedom of expression:


UNITED NATIONS

Universal Declaration of Human Rights (1948) (article 19)
The Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of the United Nations on 10 December 1948 and provides human rights standards accepted by all member states. The UDHR represents the normative basis that led to formulating the standards for freedom expression. Article 19 states that “Everyone has the right to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.

International Covenant on Civil and Political Rights (1966) (article 19)
The International Covenant on Civil and Political Rights, also known by its abbreviation ICCPR, entered into force in 1976. It elaborates the principles laid out in UDHR and is legally binding on all states who have signed and ratified its provisions. Article 19 of the ICCPR stipulates that:
"(1) Everyone shall have the right to hold opinions without interference.
(2) Everyone 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.
(3) The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."

UN Special Rapporteur on Freedom of Opinion and Expression
The office of the UN Special Rapporteur on Freedom of Opinion and Expression was established by resolution of the UN Commission on Human Rights in 1993. The mandate of the Special Rapporteur requires that information be gathered from governments, NGOs and others on the discrimination, violence or harassment of persons, including professionals, in the exercise of their right of freedom of opinion and expression. The Rapporteur submits an annual general report plus country reports on site visits, and makes recommendations on the better promotion and implementation of these rights. The Special Rapporteur focuses on both broad thematic issues as well as individual cases in which he intervenes through urgent actions and communications. The rapporteur is able to visit countries for on-site assessment at the invitation of the government in question.

The guarantees of freedom of expression in the Universal Declaration and ICCPR are very general and the Special Rapporteur has sought to clarify the precise nature of this right, by making a number of statements and declarations, often in conjunction with other human rights mechanisms, containing authoritative interpretations of these articles.

Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1996)
These principles were adopted by a group of experts in international law and endorsed by the UN Special Rapporteur in his annual report of 1996.

Article 19, an NGO campaigning for the right to freedom of expression, has been instrumental in coordinating the activities of international and regional mechanisms. It has convened meetings to bring together the UN Special Rapporteur, the OAS Special Rapporteur on Freedom of Expression and the OSCE Representative on Freedom of the Media. These three institutions have made a number of joint declarations on the issue of freedom of expression.

Convention on the International Right of Correction (1952)
This treaty offers a mechanism whereby states can clarify differences or problems arising from incorrect or misleading news dispatches.


A number of UN treaties concerned with the rights of specific groups expressly or implicitly protect their rights to freedom of expression. Such concerns have therefore been raised with the bodies overseeing the implementation of these treaties:

International Convention on the Elimination of All Forms of Racial Discrimination (1965) (article 5)
Racial and ethnic minorities equally should not be discriminated against and have equal access to airing their views and sharing information of concern to them. Broadcasters also have a responsibility to promote a culture of tolerance and ensure that their broadcasts do not become a vehicle for spreading hatred and contempt of minority groups. Violations of the treaty can be raised with the Committee on the Elimination of Racial Discrimination.

Convention on the Elimination of Discrimination Against Women (1979) (article 3)
Equal access to and representation of women in the media are crucial to ensuring proper coverage of issues of concern to women and to enable their full participation in public decision making. Effective measures need to be taken to combat discrimination against women and to promote their access to the media. Breaches can be raised with the Committee on the Elimination of Discrimination Against Women.

Convention on the Rights of the Child (1989) (article 13)
This treaty clearly establishes not only children’s right to freedom of expression, but also their right to have their views heard and to be given due weight in matters concerning them. States should take positive measures to ensure that children are given effective opportunities to provide input into public decisions affecting them, for example in the areas of education, health and prevention of crime. Violations of these rights can be taken up with the Committee on the Rights of the Child.


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AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)

African Charter on Human and Peoples' Rights (1981) (article 9)
Article 9 of the main African human rights treaty provides for freedom of expression.

In November 2000, the African Commission on Human and Peoples' Rights (ACHPR), and Article 19 adopted a joint statement noting the importance of freedom of expression, and the limited protection given to this important right by Article 9 of the Charter. A Declaration of Principles of Freedom of Expression was adopted by the ACHPR in October 2002.


COUNCIL OF EUROPE

The Council of Europe is a regional intergovernmental organization consisting of 45 countries. It aims to defend human rights, parliamentary democracy and the rule of law. All members of the European Union also belong to the Council of Europe.

European Convention on the Protection of Human Rights and Fundamental Freedoms (1950) (article 10)
Freedom of expression is protected by article 10 of the European Convention and has been the subject of a relatively large number of cases before the court. The European Court of Human Rights has promoted the free flow of information and ideas, established important precedents which limit state powers to restrict freedom of expression, particularly in the areas of press and broadcasting freedom, political expression, defamation, privacy, national security and demonstrations. Some decisions of the court however have been widely criticised for failing to uphold the right to freedom of expression. and resettlement, whatever the origin and nature of their disability."


ORGANIZATION OF AMERICAN STATES (OAS)

American Convention on Human Rights (1969) (article 13)
The American Convention on Human Rights, which entered into force in 1978, protects the right to freedom of thought and expression, the right to receive and impart information and for restrictions to be imposed on this right only for limited circumstances, reputations of individuals, national security, public order etc.

OAS Special Rapporteur on Freedom of Expression
This institution was created by the Inter-American Commission on Human Rights in October 1997 to strengthen the implementation of the right to freedom of expression. The mandate of the Special Rapporteur includes the collection of information, the preparation of annual and thematic reports and country visits. It also covers immediate notification of serious situations, or early warning, as well as promotional activities.

The Inter-American Commission on Human Rights established a Voluntary Fund for Freedom of Expression, to which member states could contribute, to facilitate the functioning of the office of the special rapporteur. Promotional activities have included, the development of declarations, networks, and technical support to states.

 

 

ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE)

The Organization for Security and Co-operation in Europe (OSCE) is the largest regional security organization in the world with 55 participating States from Europe, Central Asia and North America. OSCE was created by the 1975 Helsinki Final Act which contained a provision to "respect … human rights and fundamental freedoms, including freedom of thought, conscience and religion, and belief", as well as "equal rights and self-determination of peoples".

The OSCE has been especially concerned with the freedom of the media which is one aspect of the broader issue of freedom of expression. Such principles have been reiterated in a number of OSCE documents e.g. 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (precursor to the OSCE). The OSCE has now created a special institution to deal with these freedoms.

OSCE Representative on Freedom of the Media
In 1997 the OSCE established a Representative on Freedom of the Media following an OSCE Heads of State declaration in 1996 that OSCE commitments to free press and media needed strengthening. The OSCE Permanent Council set out the mandate of the Representative by Decision 193 "to strengthen the implementation of relevant OSCE principles and commitments [relating to a free, independent and pluralistic media] as well as to improve the effectiveness of concerted action by the participating states based on their common values."

The Representative is required to carry out a variety of activities including observing media developments in OSCE states; and ensuring a rapid response to serious problems such as obstruction of media activities in cooperation with the concerned state and other parties.

The Representative reports to the Permanent Council frequently and other OSCE bodies and makes recommendations. He/she may also make oral or written statements on issues of urgent concern and interventions with particular OSCE states. He/she also makes country visits some of which result in in-depth reports and is able to receive information on violations from a variety of sources.

Human rights observers say that the OSCE Representative operating in the more close-knit structure of the OSCE has more political commitment and resources than the UN Special Rapporteur, for example, and is also able to undertake promotional or project activities e.g. holding conferences, producing publications, providing technical support and advice to governments, financial and material assistance to set up independent media outlets etc.



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National Protection and Service Agencies

Countries that have ratified these international and regional treaties have agreed to meet their obligations under these conventions by implementing these provisions fully at the national level. This should mean in the first instance reviewing their laws relating to freedom of expression and adapting these to ensure they are in conformity or adopting new laws to meet these requirements.

Implementation of the right to freedom of expression remains problematic in many countries and governments in many cases are failing to fulfil their obligations. Problems and concerns with implementation in individual countries is well documented in reports of the Special Rapporteurs of the UN, OAS and OSCE as well as submissions to them by NGOs.



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Advocacy, Educational and Training Materials

For advocates

The Virtual Freedom of Expression Handbook (Article 19)
The book includes cases and key documents in the main areas of restriction on freedom of expression: broadcast/film regulation, concentration of ownership, content restrictions, defamation, freedom of information, minorities, national security, print regulation, privacy, protection of sources, public order, public service broadcasting.


For journalists

Practical Guide for Journalists (Reporters sans frontièrs)
This handbook is intended to provide practical guidelines for journalists conducting investigations into violations of freedom of expression and freedom of the press.

Reporting Human Rights and Humanitarian Stories: a Journalist's Handbook (Jo-Anne Velin)
This handbook aims to support journalists who report stories with human rights or humanitarian components. It includes chapters on international human rights law and international humanitarian law; topical chapters (disasters and war; migrants and refugees; minorities and indigenous/tribal peoples; women and children); country profiles with basic statistical data and a thesaurus.

For educators

Discovering the UDHR (Patrick Manson)
By examining two real cases of human rights abuses students are introduced to the contents and spirit of the Universal Declaration of Human Rights (UDHR). The UDHR is presented as a document that extends the ideas of tolerance and defending others to the areas religious and political thought, security of person, fairness and justice.

 


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Other Resources

Education and training materials for journalists

World Press Freedom Day (3 May)

Organisations that advocate, monitor and protect freedom of expression

 

 

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Key terms

Censorship - suppression of publications considered obscene, politically unacceptable, etc.

Defamation - injuring of a person's good name or reputation

Hate speech - views which incite to intolerance or hatred between groups

"Everyone has the rights to the freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through and media and regardless of frontiers." (Universal Declaration of Human Rights, Article 19)

This guide was developed by Asmita Naik.

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