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Max Planck Encyclopedia of Public International Law [MPEPIL]

Opinion and Expression, Freedom of, International Protection

Nicola Wenzel

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Access to information — Media, freedom — Hate speech — Freedom of thought, conscience, and religion

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

Freedom of opinion and expression is recognized in all universal and regional instruments on human rights as a fundamental right of the human person. Art. 19 Universal Declaration of Human Rights (1948) (‘UDHR’), Art. 13 Convention on the Rights of the Child, Art. 19 International Covenant on Civil and Political Rights (1966) (‘ICCPR’), Art. 10 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’), Art. 4 American Declaration of the Rights and Duties of Man (1948), Art. 13 American Convention on Human Rights (1969) (‘ACHR’) and Art. 9 African Charter on Human and Peoples’ Rights (1981) (‘AChHPR’) all protect the individual’s right to hold an opinion and to impart information and ideas. Freedom of opinion and expression is seen as a cornerstone of democracy and as a means of ensuring respect for all other human rights.

B.  Philosophical Background

Different reasons may be invoked for legally protecting freedom of opinion and expression and for making use of this right in practice (McCrudden 88–91). They are not mutually exclusive but highlight the different functions of the right to freedom of opinion and expression on which the human rights treaty bodies (Human Rights, Treaty Bodies) may build their interpretation of freedom of expression guarantees. Different accentuations of the philosophical background for the protection of freedom of opinion and expression together with textual differences lead to punctual divergences in the interpretation of the right to freedom of opinion and expression at the international level (see also Interpretation in International Law).

One functional approach to freedom of expression and opinion which may be traced back to John Stuart Mill’s On Liberty (first published 1859) views freedom of expression as a tool in the search for truth. The possibility for everyone to freely express his or her opinions is seen as a precondition for the emergence of truth. Opinions compete against each other on the free market place of ideas. To be able to determine where truth lies, society has to be able to listen to unorthodox and even provocative opinions which question predominant views on certain questions. Silencing certain statements or opinions which are troubling or appear false is not an option: ‘[T]he peculiar evil of silencing the expression of an opinion is, that it is robbing human race; … those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error’ (Mill 14–15). The only remedy for bad speech thus is more speech so that, at the end, truth may emerge, the best test of truth being ‘the power of the thought to get itself accepted in the competition of the market’ (dissenting opinion of Justice Holmes in Abrams v United States United States Supreme Court [Washington DC 10 November 1919] 250 US 630). The State has to refrain from interferences and restrain itself to protecting the operation of the free market place of ideas.

Another way of analysing freedom of expression is to focus on the link between freedom of expression and democracy. Proponents of this approach see freedom of expression as a prerequisite for a functioning democracy and self-government of the people. To be able to exercise their participatory rights and to control the exercise of governmental power, citizens have to have access to all kinds of information and ideas: ‘[N]o idea, no opinion, no doubt, no belief, no counterbelief, no relevant information, may be kept from them’ (Meiklejohn 88–89). This allows them to form their own opinion on public matters based on a full understanding of the issues which bear upon the life of the community (see also Public Opinion).

Finally, freedom of expression may be regarded as a means for enhancing individual autonomy (Scanlon 215–18). The expression of opinions enables the individual to express its personality. At the same time, freedom of expression furthers the recipient’s autonomy because exposure to all kinds of opinion is necessary to allow the individual to develop an own identity.

International bodies tend to stress the link between freedom of expression and democracy (see also Democracy, Right to, International Protection). Freedom of opinion and expression is regarded as ‘one of the essential foundations of a democratic society’ as stipulated by the European Court of Human Rights (ECtHR) in Handyside v United Kingdom (at para. 49) and as giving ‘a meaning to the right to participate effectively in a free society’ (UN Commission on Human Rights Resolution 2000/38 ESCOR [2000] Supp 3, 181). The Inter-American Court of Human Rights (IACtHR) summarizes the relationship between democracy and freedom of expression as follows: ‘Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free’ (Compulsory Membership in an Association prescribed by Law for the Practice of Journalism para. 70). The strong focus on the link between freedom of expression and democracy has lead the ECtHR to accord political speech more protection than speech made in non-political context and in particular more than commercial speech (see para. 16 below). The Human Rights Committee (‘HRC’) of the United Nations (UN) in contrast refuses to establish different levels of protection according to the content of speech and insofar can be said to adhere to the first approach outlined above which postulates the equivalence of all kind of speech (see para. 3 above and para. 16 below). As this example demonstrates, the many references to the democratic aspects of freedom of opinion and expression by international bodies do not mean that the other functions play no role at the international level. The autonomy argument eg is an important aspect of the inclusion of artistic expression into the scope of application of freedom of expression guarantees (see para. 14 below). That even offensive and disturbing expression in principle is considered as being covered by international freedom of expression guarantees demonstrates that the argument drawn from the instrumental role of freedom of expression in establishing truth also permeates the interpretation of these guarantees (see para. 15 below).

C.  Institutional Framework

As seen above, all major human rights conventions contain the right to freedom of opinion and expression. In contrast to the Arab Charter on Human Rights adopted by the Council of the League of Arab States (LAS) in 1994, but never ratified by States, a modernized draft version of this charter which was adopted by the Arab Standing Committee for Human Rights in 2004 (Arab Charter on Human Rights (2004)) now also includes the right to freedom of expression. The right to freedom of opinion and expression may be enforced by individuals against their State before the international treaty bodies, be it the HRC, the ECtHR, the Inter-American Commission on Human Rights (IACommHR), or the African Commission on Human and Peoples’ Rights (ACommHPR) (Human Rights, Individual Communications/Complaints; see also Individuals in International Law). The IACtHR and the African Court on Human and Peoples’ Rights (ACtHPR) also play an important role in supervising the observance of the ACHR and the AChHPR respectively although there is no or only limited direct access for individuals to these courts. Independently of individual application procedures which constitute for individuals whose freedom of opinion and expression has been violated the most effective international legal recourse, other tracks of promotion and enforcement of the right to freedom of opinion and expression have been provided for within the different international organizations (see also Human Rights, Activities of International Organizations). Only the most important of these will be mentioned in the following.

The United Nations Commission on Human Rights, which was replaced by the United Nations Human Rights Council in 2006 (United Nations Commission on Human Rights/United Nations Human Rights Council), appointed a Special Rapporteur on the Promotion and Protection of the Right to Freedom of Expression and Opinion (‘UN Special Rapporteur’) to gather information on all kinds of violations of the right to freedom of expression (UN Commission on Human Rights Resolution 1993/45 ESCOR [1993] Supp 3, 154, Human Rights Council Resolution 7/36). In the discharge of the mandate, the UN Special Rapporteur transmits urgent appeals and communications to States with regard to individuals whose freedom of expression has been violated, undertakes fact-finding country visits, and submits annual reports on his activities, in which trends and methods of his work are identified, and specific thematic issues addressed.

The Council of Europe (COE) engages in all kinds of intergovernmental activities to promote the right to freedom of expression contained in Art. 10 ECHR. Its efforts are predominantly focused on ensuring freedom of the press and all other kinds of mass media. The COE Committee of Ministers, which is the organization’s political decision-making body (International Organizations or Institutions, Decision-Making Bodies) in this field notably relies on the Steering Committee on Media and Information Society. This body is composed of experts from Member States, observers from non-member countries and interested intergovernmental and non-governmental organizations (see also Human Rights, Role of Non-Governmental Organizations). Its task mainly consists in the elaboration of normative standards in the field of media law with a particular focus on the Internet. The most important convention to be mentioned in this context is the European Convention on Transfrontier Television of 1 May 1993 (CETS No 132) with its amending protocol of 1998 (CETS No 171) which aims at facilitating the transfrontier transmission and the retransmission of television programme services (see also Broadcasting, International Regulations). The COE Committee of Ministers as well as the COE Parliamentary Assembly also adopt numerous resolutions, recommendations (see also General Comments/Recommendations) and declarations on different aspects of the right to freedom of expression.

10  In the African and the Inter-American human rights system, the human rights treaty bodies themselves, ie the IACommHR and the ACommHPR respectively, have had recourse to the institution of a special rapporteur. The IACommHR set up the office of the Special Rapporteur for Freedom of Expression in 1998 (‘IACommHR Special Rapporteur’) with the Declaration of Santiago. In addition to the tasks assigned to the UN Special Rapporteur, the IACommHR Special Rapporteur is strongly involved in the commission’s dealing with individual petitions alleging the violation of Art. 13 ACHR. The rapporteur analyses for example complaints of violations of freedom of expression received by the IACommHR and conveys to the commission its opinions and recommendations with regard to opening cases. The ACommHPR appointed a Special Rapporteur on Freedom of Expression in Africa in 2004 (‘ACommHPR Rapporteur’; see also ACommHPR ‘Resolution on the Expansion of the Mandate and Re-appointment of the Special Rapporteur on Freedom of Expression and Access to Information in Africa’ [28 November 2007] Res 122 [XXXXII 07]. Both the Inter-American and the African commission have adopted declarations on principles of freedom of expression as guidelines in the implementation of Art. 13 ACHR and Art. 9 AChHPR (Inter-American Declaration on Principles of Freedom of Expression [‘IACommHR Declaration’]; Declaration of Principles on Freedom of Expression in Africa [‘ACommHPR Declaration’]).

11  Two other international organizations are very active in the field of freedom of expression: the Organization for Security and Cooperation in Europe (OSCE) on the one hand and the United Nations Educational, Scientific and Cultural Organization (UNESCO) on the other hand. The OSCE established the office of the OSCE Representative on Freedom of the Media in 1997. The representative’s main task is to observe relevant media developments in OSCE participating States with a view to providing early warning on violations of freedom of expression and to assist States by advocating and promoting full compliance with OSCE principles and commitments regarding freedom of expression and free media. Efforts of UNESCO in the field of freedom of opinion and expression date back to the 1960s. In parallel to discussions about the New International Economic Order, developing countries succeeded in bringing the concept of a New World Information and Communication Order on UNESCO’s agenda. Developing countries’ efforts to gain assistance in the development of an own communication infrastructure and a stronger share in the flow of information dominated by the North culminated in the adoption of the Declaration on Fundamental Principles concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, to the Promotion of Human Rights and to Countering Racialism, Apartheid and Incitement to War in 1978. After the waning of the influence of developing countries, UNESCO’s activities centred on other issues and it is only fairly recently that the organization again turned to the promotion of freedom of expression. Starting point was the new communication strategy adopted by the UNESCO General Conference on 15 November 1989 to respond to the needs of emerging democracies and developing countries. The strategy reaffirms the principle of free flow of information contained in Art. 1 (2) (a) UNESCO Constitution and commits the organization to promote freedom of expression and freedom of the press. In pursuit of this goal, UNESCO has not only organized a number of regional expert seminars on freedom of the press whose reference texts on various aspects of the right have subsequently been endorsed by all Member States, but also offers a wide variety of advisory services.

12  The different international organizations active in the field of freedom of expression undertake efforts to streamline their respective work, to avoid overlaps, and to build up a cross-organizational front to strengthen freedom of expression. From 1999 onwards, special rapporteurs from the UN, the IACommHR, and the OSCE have met annually and have adopted joint declarations on different issues relevant in the protection of freedom of expression. In recent years, the ACommHPR Special Rapporteur has joined them.

D.  Content of the Right to Freedom of Opinion and Expression in International Law

1.  Scope of the Right

(a)  The Freedom to Hold an Opinion

13  The freedom to hold an opinion concerns the forum internum (inner world) of a person and protects its thoughts. Whereas the great majority of cases brought before the human rights treaty bodies concern freedom of expression rather than freedom of opinion, the HRC has established the violation of Art. 19 (1) ICCPR in the case of a detainee placed in solitary confinement for 13 years because of his communist political opinion (see also Detention, Arbitrary) and subjected to an ideology conversion system which was designed to provoke change in the prisoner’s political opinion by offering inducements of preferential treatment within prison and improved possibilities of parole (UN HRC Communication No 878/1999 Kang v Korea para. 7.3).

(b)  The Freedom to Impart Information and Ideas

14  Freedom of expression covers first of all the manifestation of the idea or opinion developed in the forum internum. It encompasses not only the freedom to express information and ideas but also the right to disseminate them. The expression of information and ideas may take many forms and a variety of media may be employed. Art. 19 ICCPR and Art. 13 ACHR contain a non-exhaustive list of communication forms when they state the right to impart information and ideas either orally, in writing or in print, in the form of art or through any other media. Information and ideas do not have to be expressed verbally; non-verbal communication such as raising a banner or burning a flag is also protected (see eg UN HRC Communication No 412/1990 Kivenmaa v Finland para. 9.3; and Steel v United Kingdom [ECtHR] Reports 1998-VII para. 92; and Hashman and Harrup v United Kingdom [ECtHR] Reports 1999-VIII para. 28). Apart from the AChHPR, all human rights conventions explicitly guarantee the right to impart information regardless of frontiers (Boundaries) thereby also forming the legal basis for modern means of international communications such as satellite or Internet.

15  The substance of expression protected is broad. All relevant provisions refer to information and ideas. Thus, freedom of expression not only covers the expression of ideas or opinions, which typically contain elements of a value judgment, but also mere information or statements of facts. The latter differ from ideas or opinions insofar as they may be evaluated according to the categories of true and false. By adding that information and ideas ‘of all kinds’ (Art. 19 (2) ICCPR; Art. 13 (1) ACHR) are protected, the ICCPR and the ACHR make clear that the content of the information or the idea is irrelevant for the scope of application of freedom of expression guarantees. Thus, such diverse expression as political views, popular literature, scientific analysis, pornography, commercial advertisement, blasphemous statements, or information about the private life of public persons are in principle covered by freedom of expression guarantees. Whether a State may legitimately ban such speech in an individual case is a question that is dealt with on the level of permissible restrictions. This is true even for disconcerting or undesirable speech. All human rights treaty bodies have implicitly or explicitly embraced the formula used by the ECtHR in Handyside v United Kingdom according to which: ‘Freedom of expression … is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”’ (at para. 49). By including even undesirable speech within the scope of application of freedom of speech guarantees, the human rights treaty bodies adhere to the principle mentioned above, according to which, in principle, the remedy for undesirable speech is more speech (see para. 3 above).

16  That commercial speech is protected by the international freedom of expression guarantees is commonly accepted by the different treaty bodies (UN HRC Commmunications No 359/1989 and 385/1989 Ballantyne, Davidson, McIntyre v Canada para. 11.3; Barthold v Germany [ECtHR] Series A No 90 para. 42). The level of protection varies, however, according to the weight attached to the democracy-based explanation of freedom of expression. The HRC initially refused to confer greater protection on political speech than on commercial speech and generally saw no room for differentiating between different kinds of expression (Ballantyne, Davidson, McIntyre v Canada para. 11.3). But the recently adopted General Comment 34 states explicitly that, in applying the principle of proportionality, account has to be taken of the form of expression and that the value based by the ICCPR upon uninhibited expression is particularly high in the circumstances of public debate concerning figures in the public and political domain (para. 34). This could be an indication that the HRC intends to follow a new approach closer to that of the ECtHR which seems to place a strong emphasis on the serving function of freedom of expression for democracy and therefore accords States a greater margin of appreciation when limiting commercial speech than when limiting political speech. In recent decisions, however, the ECtHR has held that advertising was a means for citizens of discovering the characteristics of the services and goods offered to them (Casado Coca v Spain [ECtHR] Series A No 285-A para. 36; Stambuk v Germany [ECtHR] Application No 3792/97 [17 October 2002] para. 39), thereby qualifying advertisement as an information of public interest which enjoys strong protection under Art. 10 ECHR according to the court’s own jurisprudence.

17  To a certain extent, the right to freedom of expression encompasses the right to express one’s thoughts in the language of one’s choice. Thus, the IACtHR has decided that the prohibition issued by the director of an incarceration centre for detainees who were members of a certain ethnic community to use their native language amounted to a violation of Art. 13 ACHR (López Álvarez v Honduras [Judgment] IACtHR Series C No 141 [1 February 2006] para. 164; see also Minorities, International Protection). Similarly, the HRC held that a Quebec Statute prohibiting the use of all languages save French in commercial advertising in the Canadian province of Quebec interfered with the applicant’s freedom of expression (Ballantyne, Davidson, McIntyre v Canada para. 11.3). The right to speak in the language of one’s choice, however, does not go so far as to impose positive obligations on the State. The HRC eg has held that Art. 19 ICCPR does not give the right to address a court in the language of one’s choice if one can speak the official court language (UN HRC Communication No 219/1986 Guesdon v France para. 7.2).

(c)  The Right to Seek and Receive Information and the Emerging Right of Access to Information

18  The right to freedom of expression in the forum externum (outside world) has a dual aspect insofar as it not only belongs to the person expressing or disseminating the opinion but also to its potential audience. Freedom of expression includes the right to receive any information, opinion, report, or news made public and thus protects the right to have access to the thoughts expressed by others. Therefore, all of the relevant human rights conventions explicitly contain the right to receive information. Art. 19 UDHR, Art. 19 ICCPR and Art. 13 ACHR additionally contain the right to seek information, thereby stressing that the potential audience may take active steps to procure and study information. This aspect of the right to receive information is also recognized in the jurisprudence of the ECtHR.

19  It is undisputed that the right to receive and seek information applies to generally accessible information. Recent years have seen an emerging consensus in international law to extend freedom of expression guarantees to access to information held by State authorities and not yet made public. The ACommHPR Declaration contains a right to access of information based on the link between freedom of expression and democracy in its Principle 4. The same is true for the IACommHR Declaration (Principle 4). Within the UN system, the UN Special Rapporteur supports the inclusion of the question of access to information in the freedom of expression agenda and has endorsed on 18 January 2000 a set of principles entitled ‘The Public’s Right to Know: Principles on Freedom of Information Legislation’ which were developed by the non-governmental organization Art. 19—The International Centre against Censorship. Finally, the COE actively promotes the inclusion of the right of access to information as part of the right to freedom of expression. The COE Convention on Access to Official Documents of 18 June 2009 could become the first legally binding international instrument to recognize a general right of access to official documents held by public authorities if it is ratified by a sufficient number of states.

20  The IACtHR was the first human rights treaty body to recognize the right of all individuals to request access to State-held information, stressing that the information should be provided without the need to prove direct interest or personal involvement (Claude Reyes v Chile para. 77; Gomes Lund v Brazil paras 197, 198). A determining factor for the court’s decision was the existence of a regional consensus among the Member States of the Organization of American States (OAS) about the importance of access to public information which manifests itself in several resolutions of the OAS General Assembly and in Art. 4 Inter-American Democratic Charter as well as in the Nueva León Declaration adopted at the Special Summit of the Americas in 2004. The second focal point of the court’s reasoning concerns the relationship between freedom of expression and democracy: ‘State’s actions should be governed by the principles of disclosure and transparency in public administration that enable all persons subject to its jurisdiction to exercise the democratic control of those actions, and so that they can question, investigate, and consider whether public functions are being performed adequately. Access to State-held information of public interest can permit participation in public administration through the social control that can be exercised through such access’ (Claude Reyes v Chile para. 86). The HRC has followed suit by recognizing that Art. 19 ICCPR embraces a right of access to information held by public bodies (HRC General Comment 34 para. 18; Nurbek Toktakuno v Kyrgyzstan, para. 7.4). To give effect to this right, States should according to the HRC proactively put in the public domain government information of public interest and enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation (para. 19). The ECtHR has so far adopted a restrictive position and has declined to infer a general obligation for the State to make information available to the public upon requests from individuals from Art. 10 ECHR (Leander v Sweden para. 74; Gaskin v United Kingdom para. 52). Access to information is restricted to personal data that may be obtained on the basis of the right to private life contained in Art. 8 ECHR (Gaskin v United Kingdom para. 49). More recent decisions, however, indicate that the ECtHR may be willing to adopt a broader approach in the future (SdruženíJihočeskéMatky v Czech Republic; Társaság A Szabadságjogokert v Hungary paras 35–36). In these decisions, the Court explicitly reiterates its difficulty in deriving from the Convention a general right of access to administrative data and documents. But it recognizes an interference with Art. 10 ECHR in view of the specific facts underlying the applications. In both cases the applicants made a request for the release of the information and the information requested was ready and available and did not require the collection of any data by the authorities.

(d)  Freedom of the Media

21  Although the press is not explicitly mentioned in any of the international human rights conventions, freedom of the press and other mass media such as broadcasting is an important aspect of the international protection of freedom of expression. Only the modern codification of freedom of expression in Art. 11 Charter of Fundamental Rights of the European Union (2000) textually emphasizes the weight of this right by providing that the freedom of pluralism and the media shall be respected. Because mass media have the ability to reach a large number of persons, interferences by the State have a sizable impact on the communication process within civil society. Mass media being the vehicle for the right of all citizens to receive information and ideas of all kinds it is vital for the functioning of a representative democracy that they can gather and publish the most diverse information and opinions. Against this background, the ECtHR has developed the concept of the press and broadcasters as ‘public watchdogs’ (Observer and Guardian v United Kingdom para. 59 b; Jersild v Denmark para. 31) who have the task of imparting information and ideas on matters of public interest. Because of its vital importance, freedom of the media has become a focal point of activities by international organizations active in the field of freedom of expression and interferences with freedom of the media are the object of special scrutiny by international human rights treaty bodies.

22  Freedom of the media requires independence of mass media from control by the State. It also requires guaranteeing plurality and potentially free access to the mass media for all persons and groups (Principle 12 IACommHR Declaration; Compulsory Membership in an Association prescribed by Law for the Practice of Journalism para. 34). This implies a ban on State monopolies (UN HRC Concluding Observations on Austria [19 November 1998] UN Doc CCPR/C/79/Add.103 para. 6; UN HRC Concluding Observations on Guyana [25 April 2000] UN Doc CCPR/C/79/Add.121 para. 19; Informationsverein Lentia v Austria para. 39; Compulsory Membership in an Association prescribed by Law for the Practice of Journalism para. 34; Principle 5 (1) ACommHPR). Due to technical progress, this ban nowadays also applies to broadcasting, the number of frequencies and channels available no longer constituting a valid argument for a State monopoly (Informationsverein Lentia v Austria para. 36; Principle 5 ACommHPR). But free expression may also be threatened by the concentration of media ownership in private media conglomerates (Compulsory Membership in an Association prescribed by Law for the Practice of Journalism para. 56; UN HRC Concluding Observations on Italy (3 August 1994) UN Doc CCPR/C/79/Add.37 paras 10 and 17; COE Parliamentary Assembly ‘Resolution 428 (1970) Containing a Declaration on Mass Communication Media and Human Rights’ para. 8). The State therefore has a positive obligation to prevent excessive media concentration.

23  Due to the great impact of expression made in mass media and the significant contribution of a free press to democratic governance, the international human rights treaty bodies have developed special standards for journalists. The basic assumption underlying these standards is the responsibility for journalists in a democratic society to ‘act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism’ (Pedersen a Baadsgard v Denmark [ECtHR] Report 2004-XI para. 78). If journalists comply with these ethical standards, they may rely on their compliance in defamation cases brought before the national courts (Grote and Wenzel para. 134). Requiring the establishment of the veracity of information published in mass media in these cases would have a chilling effect on the practice of journalism and therefore has been judged to constitute an excessive limitation of freedom of expression (Herrera-Ulloa v Costa Rica paras 132–33). Journalists also have great liberty when reproducing or reporting statements of other persons. The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview requires particularly strong reasons as it would seriously hamper the contribution of the press to discussion of matters of public interest (Jersild v Denmark para. 35). In addition, journalists have the right not to reveal confidential sources of information (Principle 15 ACommHPR Declaration; Principle 8 IACommHR Declaration; UN HRC Concluding Observations on Kuwait [27 July 2000] UN Doc CCPR/CO/69/KWT para. 36; Goodwin v United Kingdom [ECtHR] Reports 1996-II para. 39).

24  The Internet has established itself as a new medium for transnational communications that presents a considerable challenge (see also Data, Transboundary Flow, International Protection). Because of its broad and worldwide reach, it constitutes an important tool for the exercise of the right to freedom of expression (HRC General Comment 34 para. 15; Times Newspaper Ltd v United Kingdom para. 27). At the same time, it has been exploited for the dissemination of criminal content. The challenge facing governments is to fight against illegal content without damaging the infrastructure of the Internet itself. The OSCE as well as the COE have addressed these problems in a number of declarations and recommendations, eg the OSCE Amsterdam Recommendations, and the COE Committee of Ministers Declaration on Freedom of Communication on the Internet. The ECtHR has had to deal with a number of cases concerning freedom of expression on the Internet (Times Newspaper Ltd v The United Kingdom; Perrin v United Kingdom; KU v Finland). Most cases can be resolved by having recourse to the general principles developed with respect to the exercise of freedom of expression through mass media. There are a number of questions specific to Internet communications, however, such as the question whether the term journalism has to be interpreted extensively to include new media forms that have developed on the Internet with the consequence that the special responsibilities and privileges attached to the status of journalist would extend to this new category of persons. The question whether bloggers eg may rely on journalists’ right not to reveal their sources of information is a question of great practical importance. The UN Special Rapporteur A Ligabo has argued in his report on freedom of opinion and expression of 2 January 2007 that guaranteeing freedom of expression on the Internet requires extending to website contributors and bloggers the same legal protection as to media professionals (at para. 80).

(e)  Hate Speech

25  As has been outlined above, there is general agreement in international law that even offending, shocking, or disturbing speech is protected by international freedom of expression guarantees. The question arises, however, whether this is also valid for racist speech or generally for speech that puts into question the human dignity (see also Human Dignity, International Protection) of other persons. Concerning racist speech, Art. 4 (a) Convention on the Elimination of all Forms of Racial Discrimination (‘CERD’) obliges States to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination (see also Racial and Religious Discrimination), as well as incitement to acts of violence against any race or group of persons of another colour or ethnic origin (see also Ethnicity). When interpreting international human rights conventions Art. 4 (a) CERD has to be taken into account pursuant to Art. 53 ECHR, Art. 29 (b) ACHR or more generally Art. 31 (3) (c) Vienna Convention on the Law of Treaties (1969). In addition, Arts 20 ICCPR and 13 (5) ACHR explicitly deal with hate speech and oblige States to prohibit any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence by law. The HRC does not read Art. 20 ICCPR as defining the scope of application of Art. 19 ICCPR and thus excluding hate speech from the protection afforded by Art. 19 ICCPR. Rather, the HRC reviews State restrictions on hate speech on the basis of Art. 19 (3) ICCPR (General Comment 34 para. 50). It recognizes that hate speech in principle enjoys the protection of Art. 19 ICCPR, but considers that States’ efforts to fight against hate speech are measures to protect the rights and reputation of others in the meaning of Art. 19 (3) (a) ICCPR which it interprets as not only relating to other persons but also to a community as a whole (UN HRC Communication No 736/1997 Ross v Canada para 11.5). When examining State restrictions on hate speech under Art. 19 (3) ICCPR, the HRC takes into account the principles reflected in Art. 20 (2) ICCPR (ibid). The ECHR does not contain a provision similar to Art. 20 ICCPR. But Art. 17 ECHR, which contains an interpretative rule according to which the convention may not be interpreted in a way so as to imply the right for a group or person to engage in any activity aimed at the destruction of convention rights, has been used by the ECtHR either explicitly or implicitly to exclude hate speech that is incompatible with the fundamental values of the Convention from the scope of application of Art. 10 ECHR altogether. The ECtHR has held, for example, that racist or anti-Semitic speech does not enjoy the protection of Art. 10 ECHR (Jersild v Denmark para. 35; Norwood v United Kingdom (ECtHR) Reports 2004-XI, 343; Pavel Ivanov v Russia, para. 1). In other cases, the ECtHR has measured hate speech against Art. 10 (2) ECHR (Vejdeland et al. v Sweden, para. 48; Féret v Belgium, para. 57) Thus, hate speech is either generally excluded from the scope of application of freedom of expression guarantees, or State restrictions on hate speech are regarded as permissible limitations of the right to freedom of expression in the light of Art. 20 ICCPR, Art. 13 (5) ACHR, or Art. 10 (2) ECHR.

26  More difficult is the question of how to deal with revisionist statements which reassess certain historical facts and link this reassessment with political claims. The discussion on whether restrictions of revisionist statements are compatible with international freedom of expression guarantees has predominantly focused on the denial of the Holocaust, but has recently re-emerged in the debate on the French law making it a criminal offense to deny the Armenian Genocide of 1915 (Genocide) and is also highly relevant with regard to efforts for a European Union-wide ban on condoning, denying, or trivializing the crimes of genocide, crimes against humanity, and war crimes as defined in the Statute of the International Criminal Court (ICC) and crimes defined by the International Military Tribunal of Nuremberg (see also International Military Tribunals; Council of the European Union [19–20 April 2007] Press Release 8364/07, 23–25). Revisionist statements differ from racist speech insofar as they are not directly targeted on disparaging certain population groups because of their ethnic, national, or religious belonging. They do affect, however, the respect accorded to a certain community and encroach on the community’s possibility to live free from fear of a hostile environment (UN HRC Communication No 550/1993 Faurisson v France para. 9.6). According to the ECtHR, negation or revision of clearly established historical facts such as the Holocaust are removed from the protection of Art. 10 ECHR by Art. 17 ECHR (Lehideux et Isorni v France para. 47). If, on the contrary, there is an ongoing debate among historians about the event in question and its interpretation, the statement enjoys the protection of Art. 10 ECHR and State restrictions have to be measured against Art. 10 (2) ECHR (Fatullayev v Azerbaijan para. 81). Thus the ECtHR considered that restrictions on statements calling for a re-evaluation of France’s collaboration policy in World War II under Marshal Pétain constituted a violation of Art. 10 ECHR (Lehideux et Isorni v France paras 46–58). The HRC does not restrict in a similar manner the scope of application of Art. 19 ICCPR, but on the basis of permissible limitations under Art. 19 (3) ICCPR has considered State restrictions on the denial of the Holocaust as legitimate (Faurisson v France paras 9.6–9.7). The recently adopted General Comment 34, however, appears to be more restrictive when it states broadly that laws that penalize the expression of opinions about historical facts are incompatible with the ICCPR (para. 49).

2.  Permissible Restrictions

27  State encroachment on the right to freedom of expression may take many forms. State measures may aim directly at the individual or at the medium the individual selected for expressing himself. Art. 13 (3) ACHR establishes a principle applicable to all human rights conventions when it states that indirect methods of restriction such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information also constitute interferences with the right to freedom of expression. The indication in Art. 10 (2) ECHR and Art. 19 (3) ICCPR that the exercise of freedom of expression carries with it duties and responsibilities highlights the fact that the State does not only have to refrain from interfering with the right to freedom of expression but also has to take positive measures to ensure that the right is respected between private individuals (see also Human Rights, Treaties, Third-Party Effect).

28  Interferences with freedom of opinion are never permissible as the wording of both Art. 19 UDHR and Art. 19 (1) ICCPR unmistakably make clear. In the ECHR, the freedom to hold an opinion is guaranteed together with the forum externum in Art. 10 (1) ECHR which is subject to the limitations contained in Art. 10 (2) ECHR without exception. This formulation, however, was not meant to allow infringements on the freedom to hold an opinion. Rather, it is generally thought that the forum internum of freedom of expression is covered not by Art. 10 ECHR but by the freedom of thought guarantee in Art. 9 (1) ECHR (Cohen-Jonathan 367). As Art. 9 (2) ECHR allows restrictions only with regard to the freedom to manifest one’s religion or beliefs, freedom of opinion is not subject to permissible limitations under the ECHR, either.

29  Not all interferences with the right to freedom of expression, however, constitute a violation of the right. Restrictions of freedom of expression are permissible under the conditions listed in Art. 19 (3) ICCPR, Art. 10 (2) ECHR, and Art. 13 (2) ACHR. Prior censorship, however, is excluded from possible justification. Although this is explicitly confirmed only in Art. 13 (2) ACHR which contains an exception for public entertainment regulated with the aim of morally protecting childhood and adolescence, the HRC and the ECtHR both follow this view. At first sight, Art. 9 (2) AChHPR contains an overbroad limitation clause when it confers the right to freedom of expression and opinion ‘within the law’. The ACommHPR has clarified, however, that national law does not take precedence over the right to freedom of expression (Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria para. 40; see also International Law and Domestic [Municipal] Law). This is confirmed by the ACommHPR Declaration in Principle 2 (2) which contains a limitation clause modelled on the corresponding clauses contained in the other human rights conventions.

(a)  General Requirements

30  For a restriction to be permissible it has to fulfil three conditions. First, it has to be prescribed by law. Law is meant here in a substantive sense, not a formal one. Thus, a restriction is prescribed by law if it is set down in formal legislation or in an enactment of lower rank than a statute, in an equivalent unwritten norm of common law or in court decisions interpreting a norm (see Nowak para. 46; Association Ekin v France [ECtHR] Reports 2001-VIII para. 46). It is not prescribed by law however, if it is enshrined in traditional, religious, or other such customary law (HRC General Comment 34 para. 24).

31  Second, the restriction has to pursue a legitimate aim, ie one of the aims listed in the relevant provision. In this respect, it is noteworthy that Art. 10 (2) ECHR contains a more expansive list of permissible purposes for interference than the ICCPR and the ACHR. Whereas ICCPR and ACHR only refer to the respect of the rights and reputations of others, the protection of national security, of public order, and of public health or morals, the ECHR lists in addition territorial integrity or public safety, the prevention of disorder or crime, the prevention of disclosure of information received in confidence, and the maintenance of the authority and impartiality of the judiciary. These differences in wording do not necessarily result in broader admissibility of restrictions under the ECHR, however, as the ACHR and ICCPR treaty bodies tend to view the protection of public order as a general clause which encompasses many of the more specific purposes of State restrictions listed in the ECHR. The ACommHPR Declaration makes only a general reference to ‘legitimate’ interests in Principles 2, 4, and 13. But in the context of individual applications, the ACommHPR has had recourse to Art. 27 (2) AChPHR, according to which the rights and freedoms shall be exercised with due regard to the rights of others, collective security, morality, and common interest, to substantiate the aims that may be legitimately pursued by States (Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria para. 41).

32  Third, the restriction has to be necessary for attaining the purpose. Art. 10 (2) ECHR more specifically requires necessity ‘in a democratic society’, a requirement the IACtHR and the ACommHPR have taken over (Herrera-Ulloa v Costa Rica para. 120; Principle 2 (2) ACommHPR Declaration). The HRC as well, frequently refers to the weight attached to freedom of expression in a democratic society (Nowak para. 47). The restriction must be required by a compelling State interest which clearly outweighs the social need for protecting freedom of expression and has to be proportional to the purpose pursued by the State (Compulsory Membership in an Association prescribed by Law for the Practice of Journalism para. 46; Sunday Times v United Kingdom [ECtHR] Series A No 30 paras 59, 62; Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v Nigeria para. 42).

(b)  The Example of Restrictions to Protect the Rights or Reputations of Others

33  Controversies about the limits to freedom of expression mostly concern cases where freedom of expression encroaches on the rights or reputations of others. The exercise of freedom of expression naturally conflicts with the interests of other persons to avoid information about their private life becoming public and to guard their personal reputation against false allegations and dishonourable statements made about them (see also Privacy, Right to, International Protection). To safeguard these interests which are also protected by international human rights guarantees such as Art. 12 UDHR, Art. 17 ICCPR, Art. 8 ECHR, and Art. 11 ACHR, international freedom of expression guarantees allow States to infringe on the right to freedom of expression to protect the rights and reputations of others. The human rights treaty bodies and the ECtHR and IACtHR in particular have developed a number of principles to resolve the problems that typically arise in these kinds of cases. These principles have been embraced by other treaty bodies and special rapporteurs.

34  True statements in general enjoy greater protection than false statements (Principle 12 (1) ACommHPR Declaration; Grote and Wenzel para. 119). Demanding the proof of opinions and value judgments, however, is not compatible with freedom of expression as opinions cannot be judged according to the standard of right and wrong with the consequence that proving their veracity is an impossible task (Report of UN Special Rapporteur A Hussain [18 January 2000] para. 52; Lingens v Austria [ECtHR] Series A No 103 para. 46). Statements on issues of public interest also enjoy greater protection (Herrera-Ulloa v Costa Rica para. 127; Oberschlick v Austria [ECtHR] Series A No 204 para. 58). Issues of public interest are first of all political matters (HRC General Comment 34 para. 38), in particular when made in the context of an electoral campaign (Ricardo Canese v Paraguay para. 88), but also information on questions of relevance for the general public such as information on the impact of certain products on human health or on mismanagement of corporations (see eg Hertel v Switzerland [ECtHR] Reports 1998-VI para. 47). In the jurisprudence of the ECtHR, this does not include commercial information for the time being (see para. 16 above). Politicians and public figures must tolerate greater criticism because they knowingly lay themselves open to public scrutiny (Herrera-Ulloa v Costa Rica paras 128–29; Ricardo Canese v Paraguay paras 98 and 103; Media Rights Agenda and Constitutional Rights Project v Nigeria para. 74; Principle 12 ACommHPR; Castells v Spain [ECtHR] Series A No 236 para. 46; Feldek v Slovakia [ECtHR] Reports 2001-VIII para. 74). The IACommHR even goes so far as to put into doubt the compatibility of criminal sanctions to protect the reputation of a public official, a public person, or a private person who has voluntarily become involved in matters of public interest with the right to freedom of expression (Principle 10 IACommHR Declaration). This rather strict approach is a reaction to so-called desacato laws (‘insult laws’) widespread among Latin American States which penalize offensive expressions directed at public officials and which have been misused as an instrument to suppress legitimate criticism. It has been taken up by the UN Special Rapporteur who advocates the abolition of criminal defamation laws in favour of civil laws which he considers provide sufficient protection for reputations (Report of UN Special Rapporteur A Hussain [18 January 2000] paras 52 and 205; Report of UN Special Rapporteur A Ligabo [2 January 2007] para. 81 and the HRC (HRC General Comment 34 para. 47). More cautiously, the ECtHR has held with regard to the press that the imposition of a prison sentence for a press offence is only compatible with Art. 10 ECHR in exceptional cases because of its chilling effect on the media (Cumpana and Mazare v Romania [ECtHR] Reports 2004-XI paras 115–16). In the same vein, the IACtHR has held criminal sanctions to be acceptable only in exceptional circumstances (Kimel v Argentina para. 78). Independently of the question whether criminal sanctions for defamation are permissible in principle, all human rights bodies concur in demanding that sanctions for encroachment on the rights and reputations of others not be so severe as to inhibit the use of the right to freedom of expression. Because of its chilling effect on the future use of the right to freedom of expression the amount of damages awarded in a civil lawsuit for defamation for example may violate the right to freedom of expression (Tolstoy Miloslavsky [ECtHR] Series A No 316-B paras 49–50, Tristán Donoso v Panama para. 129). Art. 14 ACHR contains a special provision guaranteeing a right to reply for anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication. Although the other human rights treaties do not contain a similar provision, the respective freedom of expression guarantees may be interpreted as implying a positive obligation for the State to create a legal obligation to publish the reply or rectification (van Rijn 786; Nowak para. 53).

35  Another set of cases where the right to freedom of expression may come into conflict with the rights of others are prohibitions of blasphemous statements. The conflict between freedom of religion and the protection of religious feelings protected by Art. 18 UDHR, Art. 18 ICCPR, Art. 9 ECHR, Art. 12 ACHR, and Art. 8 AChHPR on the one hand (Religion or Belief, Freedom of, International Protection), and freedom of expression on the other hand attracted international public attention in 2005 when a series of cartoons depicting the prophet Mohamed published in Danish newspapers and later reprinted in newspapers in other countries engendered public protests by Muslim organizations all over the world, calls for a boycott of Danish products, and even threats of violence. Criminal proceedings brought in France and Denmark for violation of anti-blasphemy laws were discontinued or ended with an acquittal of the accused because the relevant authorities held that publication of the cartoons was covered by the right to freedom of expression.

36  Blasphemous statements have to be treated in the same way as other kind of hate speech. In case the statements amount to an incitement to discrimination, hostility or violence they may be and have to be prohibited. The ECtHR excludes such statements from the scope of application of Art. 10 ECHR on the basis of Art. 17 ECHR (Norwood v United Kingdom). The HRC in contrast requires that such prohibitions meet the requirements of Art. 19 (3) ICCPR (HRC General Comment 34 para. 48). In case blasphemous statements do not amount to an incitement to discrimination, hostility or violence, the situation is less clear. International jurisprudence in that respect mainly exists in the context of the ECHR. The cases that have been brought before the ECtHR mainly concerned cases where the State interfered with freedom of expression by prohibiting the diffusion of statements thought to hurt religious feelings of certain population groups. The court has made clear that States have the duty to ensure the peaceful enjoyment of the right to freedom of religion. However, according to the ECtHR, no one may reasonably expect to be exempt from all criticism: those who exercise their right to freedom of religion ‘must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State…. Indeed, in extreme cases the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them’ (Otto-Preminger-Institut [ECtHR] Series A No 295-A para. 47). But as a uniform conception of the role of religion in society does not exist in Europe, the ECtHR accords States a considerable margin of appreciation in assessing the necessity of interfering with freedom of expression (ibid para. 50). In addition, the court has held that the protection of religious feelings may not be invoked to stifle discussions on issues of undisputable public interest in democratic societies (Giniewski v France [ECtHR] Application No 64016/00 [31 January 2006] paras 50–52). Thus, a right of certain persons or groups to State restrictions of freedom of expression to protect their religious feelings will only be acknowledged in extreme circumstances by the ECtHR. In its General Comment 34 the HRC has stated that except in the specific circumstances of Art. 20 (2) ICCPR, prohibitions of displays of lack of respect for a religion or other belief systems are incompatible with the ICCPR (para. 48). This seems to indicate that the HRC—in opposition to the ECtHR—does not consider the protection of religious feelings as a legitimate ground for restricting freedom of expression.

E.  Assessment

37  International law contains a panoply of norms guaranteeing freedom of opinion and expression and provides different mechanisms to enforce this right. Reality, however, is far from perfect. Journalists continue to be harassed, persecuted, and even killed in different parts of the world, governments find means to suppress criticism, media concentration is a growing phenomenon in developed as well as developing countries, and anti-terrorism legislation (see also Terrorism) increasingly encroaches on freedom of expression (Report of UN Special Rapporteur A Ligabo [17 December 2004]; ACommHPR ‘Resolution on the Situation of Freedom of Expression in Africa’ [29 November 2006]). The special rapporteurs in the different human rights systems who, in contrast to the human rights treaty bodies, may act proactively have an important role to play in raising awareness of the shortcomings in the implementation of the right to freedom of expression, in drawing public attention to particularly egregious violations of the right, in addressing patterns of violations and in providing assistance in designing legislation that fully takes into account the significance of the right to freedom of opinion and expression as a precondition for a democratic State and for the enjoyment of all other human rights.

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