Applicable International Human Rights Standards
Module 3: Criminalisation of Online Speech
Overview of the right to freedom of expression and associated rights
It is trite that the right to freedom of expression is deeply entrenched as a fundamental human right and given protection through various international and regional instruments. Article 19 of the UDHR states:
“Everyone has the right to 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.”
Article 19 of the ICCPR gives further effect to this, and article 20 of ICCPR provides for certain restrictions on speech:
“1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
In 2011, the United Nations Human Rights Committee published General Comment 34, which provides valuable guidance on how the right to freedom of expression should be interpreted. It states that freedom of expression is the “foundation stone for every free and democratic society”, and that it is a “necessary condition for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.” General Comment 34 notes that the right to freedom of expression includes:
- Political discourse.
- Commentary on one’s own affairs and on public affairs.
- Canvassing ideas.
- Discussing human rights.
- Journalism.
- Cultural and artistic expression.
- Teaching, and religious discourse.
Freedom of expression may even extend to speech that may be regarded as deeply offensive by some people. The right applies both to verbal and non-verbal communications as well as all modes of expression, including audio-visual, electronic, and internet-based communication.
Freedom of expression as an enabling right
- The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (UNSR on FreeEx) in a 2011 Report noted that the “right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an ‘enabler’ of other rights”. The UNSR went on to recognise that the right to freedom of expression also impacts economic, social, and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications.
- General Comment 34 acknowledged that freedom of expression embraces the right of access to information, plays an important role in the conduct of public affairs, contributes to the effective exercise of the right to vote, and is integral to the enjoyment of the rights to freedom of assembly and association.
The 2017 Report of the UNSR on FreeEx sets out states’ obligations under article 19 of the ICCPR. States may not interfere with, or in any way restrict, the holding of opinions, unless there are instances that warrant restriction – which must be provided by law and necessary for the respect of the rights or reputations of others, or for the protection of national security or public order, or public health or morals. States are also under an obligation to take steps to protect individuals from undue interference with human rights when committed by private actors, including taking appropriate steps to prevent, investigate, punish, and redress private actors’ abuse. Such steps include the adoption and implementation of legislative, judicial, administrative, educative, and other appropriate measures that require or enable businesses to respect freedom of expression, and, where private sector abuses occur, access to an effective remedy.
In the African context, article 9 of the African Charter provides that:
“1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions within the law.”
African regional case law: limiting freedom of expression
- In Constitutional Rights Project v Nigeria, the African Commission on Human and People’s Rights (ACHPR) held that the “only legitimate reasons for limitations of the rights and freedoms of the African Charter are found in Article 27(2), that is, that the rights “shall be exercised with due regard to the rights of others, collective security, morality and common interest”. The ACHPR went on to state that the “justification of limitations must be strictly proportionate with and absolutely necessary for the advantages which follow. Most important, a limitation may not erode a right such that the right itself becomes illusory.”
- The African Court on Human and People’s Rights (African Court) in Konaté v Burkina Faso held that criminal sanctions for defamation must be necessary and proportionate, failing which they are incompatible with the ACHPR and other human rights instruments. Accordingly, expression must be within the prescripts of the law, and may only be limited in terms of article 27(2) of the African Charter, bearing in mind what is proportionate and necessary.
In 2002, the Declaration of Principles on Freedom of Expression in Africa was adopted to supplement article 9 of the African Charter. Article 2 of the Declaration of Principles established that arbitrary interference with a person’s freedom of expression is prohibited and that any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary in a democratic society. The revised 2019 Declaration of Principles on Freedom of Expression and Access to Information in Africa further provide that:
“States shall criminalise prohibited speech as a last resort and only for the most severe cases. In determining the threshold of severity that may warrant criminal sanctions, States shall take into account the:
a. prevailing social and political context;
b. status of the speaker in relation to the audience;
c. existence of a clear intent to incite;
d. content and form of the speech;
e. extent of the speech, including its public nature, size of audience;
f. and means of dissemination;
g. real likelihood and imminence of harm.”
It goes on to further state that States should not prohibit speech that merely lacks civility, or which offends or disturbs.(1)
Other implicated rights
In the context of online criminalisation, it is important to note that there are other interests and rights involved alongside the right to freedom of expression. These are different to the rights that are enabled through freedom of expression. The divergence of varying rights has been aptly captured in a 2019 Report on the UNSR on FreeEx:
“[F]reedom of expression is a legal right of paramount value for democratic societies, interdependent with and supportive of other rights throughout the corpus of human rights law. At the same time, anti-discrimination, equality and equal and effective public participation underpin the entire corpus of human rights law. The kind of expression captured in article 20 of the International Covenant on Civil and Political Rights and article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination presents challenges to both sets of norms, something that all participants in public life must acknowledge.”
Equality and non-discrimination are among the rights sometimes at odds with freedom of expression. While these rights can be exercised harmoniously, tensions are not uncommon. Beyond equality and non-discrimination, when considering freedom of expression and the criminalisation of online speech, regard should be had to other rights, including the rights of children. In some instances, protection measures online for children have at times taken a back seat to freedom of expression. In contrast, at other times, there have been constraints on children’s or others’ digital expression due to the need to combat online violence and exploitation. A 2017 UNICEF Report on Children’s Rights and Business in a Digital World: Freedom of Expression, Association, Access to Information and Participation explains that what is ultimately required is some form of balancing between children’s rights to freedom of expression and access to information and their right to be protected from violence.
There are other instances where there is also a need for balance:
- Balancing the right to freedom of expression with the right to privacy when determining whether to publish content.
- Striking a balance between the right to freedom of expression and the right to reputation.
It is necessary to note that rights are not absolute and may be subject to certain limitations and restrictions in order to balance competing rights and interests. (2) Ultimately, the right to freedom of expression is not unbounded and can be restricted to protect other rights, just as other rights may be subject to certain limitations and restrictions in order to advance freedom of expression. The restrictions of the right to freedom of expression will be dealt with further in the following section.