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.”
These fundamental instruments have been bolstered over time with the release of several supporting guidelines such as General Comment No 34 on Freedom of Opinion and Expression,(1) as well as reports of the United Nations (UN) Special Rapporteurs on freedom of opinion and expression, privacy, freedom of peaceful assembly and of association, violence against women and girls, its causes and consequences, etc.
For example, the 2017 Report of the UN Special Rapporteur on Freedom of Opinion and Expression (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.(2) 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.
Despite these strong protections in international law, many challenges remain in realising the right to freedom of expression in the online age. By way of example, in 2023, the UNSR on FreeEx, together with several other special mandate holders in international and regional bodies, released a Joint Declaration on Media Freedom and Democracy that expressed deep concern about the growing threats to democracy, freedom of opinion and expression, and media freedom globally as well also an overall lack of understanding of the role of the media as an essential pillar of democracy, human rights, and sustainable development.(3)
Balancing rights: the example of children’s rights
In the context of online content, it is also notable that children and young people constitute one of the largest and fastest-growing audiences for online content in the world. As such, the rights of the child are significantly implicated in decisions on how to treat online content. In terms of article 3 of the UN Convention on the Rights of the Child, the best interests of the child must be a primary consideration in all actions concerning children, and states are required to take appropriate measures to ensure the child is protected as such by taking all appropriate legislative and administrative measures.
The specific audience of children using online tools demonstrates the complexity of regulating online speech. While children must be protected from harmful online content such as hate speech or abusive materials, they must also be able to meaningfully exercise the right to freedom of expression in terms of article 13, which includes the “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 the child’s choice” and to access information in terms of article 17.
In 2021, the UN Committee on the Rights of the Child published General Comment 25 on children’s rights in relation to the digital environment, which provides guidance for State implementation of the UNCRC in relation to the digital environment and with regard to relevant legislation, policy, and other measures to ensure compliance with the Convention.(4) General Comment 25 states that content moderation and content controls should be balanced with the right to protection against violations of children’s other rights, notably their rights to freedom of expression and privacy. The General Comment further notes that restrictions to children’s right to freedom of expression such as filters and safety measures should be lawful, necessary, and proportionate.
This need to balance the competing rights was emphasised in the 2017 UNICEF Report on Children’s Rights and Business in a Digital World: Freedom of Expression, Association, Access to Information and Participation.
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.”
Case note: limiting freedom of expression
African case law defining the appropriate contours of limitations on freedom of expression in the offline realm has advanced over the years with several foundational cases being heard in regional and continental fora:
- In the case of Agnes Uwimana-Nkusi & Saidati Mukakibibi v Rwanda (2021), the African Commission on Human and Peoples Rights evaluated the convictions of two journalists under several laws limiting freedom of expression on the grounds of defamation and national security. The Commission found that criminal defamation laws violate article 9 of the African Charter and directed Rwanda to attend to the necessary amendments. In arriving at its decision, the Commission held that “the law cannot give persons in charge of its application unlimited powers of decision on the restrictions of freedom of expression” and that “any limitation on freedom of expression must be therefore adjudicated considering its importance to democracy and the impact such a limitation would have on the principles considered as fundamental to a democratic society.”
- In Isaac Olamikan & Anor v. Federal Republic of Nigeria (2023), the Economic Community of West African States Community Court of Justice (ECOWAS Court) declared sections of the Nigerian Press Council Act inconsistent with article 9(1) of the African Charter for failing to recognise the public interest nature of media and imposing a minimum educational requirement, age limits, and registration requirements on media that unjustifiably interfered with the right to freedom of expression.(5)
These cases show the narrow confines within which limitations on the right to freedom of expression must fit.
In April 2020, the African Commission on Human and Peoples Rights Declaration of Principles on Freedom of Expression and Access to Information in Africa (the Declaration) came into force to supplement Article 9 of the African Charter.(6) It provides additional guidance on appropriate limitations to freedom of expression in several sections:
- Principle 2 emphasises that states should not interfere with freedom of opinion;
- Principle 5 highlights the need to protect the rights to freedom of expression and access to information both offline and online;
- Principle 9 speaks to the justifiable limits that may be placed on the exercise of these rights, noting that such limitations must be prescribed by law, serve a legitimate aim, and be a necessary and proportionate means to achieve the stated aim in a democratic society, as well as providing requirements that must be met by law limiting these rights;
- Principle 22 which calls on states to repeal criminal laws on sedition, insult, and publication of false news, decriminalise defamation and libel, and review all criminal laws restricting content to ensure alignment with international standards;
- Principle 23 sets out the types of speech that must be prohibited by states, noting that speech should be criminalised only as a last resort and only for the most severe cases and that states should not prohibit speech that merely lacks civility, or which offends or disturbs; and
- Principle 38 directs states not to interfere with the rights to seek, receive, and impart information through any means, including online, by removing, blocking, or filtering content unless justifiable and compatible with international standards.
Other implicated rights
Freedom of expression as an enabling right
- Beyond the obvious interlinkages, such as with the right to freedom of assembly and the rights of the child, freedom of expression serves as an enabling right for several other human rights. For example, General Comment 21 on the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) underlines how freedom of expression underpins the right to participate in cultural life.(7)
- General Comment No 34 on the ICCPR stresses the interdependency of the rights to opinion, expression, and participation in public affairs as well as the fact that freedom of expression is a necessary condition for the realisation of the principles of transparency and accountability.(8)
At the same time, other rights may occasionally come into conflict with the right to freedom of expression. For example, the right to equality and non-discrimination may arguably need to be protected through the regulation of hate speech. The right to privacy may be implicated when content is published about a specific individual (see Advanced Module 4 on Privacy and Security Online in this series for more on the balance between privacy and freedom of expression). Exercising the right to freedom of expression may implicate the right to reputation or dignity when involving content about a specific individual.
Ultimately, the balancing acts required in managing these potential tensions can sometimes be difficult, which underscores the need for such evaluations to occur in conformity with the extensive body of international human rights law and standards that exists.
Online speech and gender
Research has shown that women, particularly those in prominent positions such as politicians and journalists, are most targeted by harmful online speech and digital security attacks that seek to stifle their freedom of expression and discourage women’s participation online.(9)
As highlighted in the UNSR on FreeEx’s 2023 statement to the UN Human Rights Council:(10)
“Gendered censorship is pervasive, with women’s voices being suppressed by State, communities, religious and private actors. Online gender-based violence is a serious barrier to women’s ability to speak, engage and organize online.”