Restricting Freedom of Speech Online
Module 3: Criminalisation of Online Speech
As a result of the dramatic changes in the spread of information occasioned by the internet, there has been a proliferation of attempts to address issues relating to terrorism and national security, cybercrimes, and the spreading of disinformation online. Many of these attempts are, to varying degrees, in conflict with the right to freedom of expression.(1) Although the right to freedom of expression is a fundamental human right, it is not absolute. As with most rights, freedom of expression may be lawfully restricted where the restrictions are reasonable and justifiable in an open and democratic society. However, as confirmed in General Comment 34, the restrictions imposed by states should not put the right to freedom of expression in jeopardy.
Article 19(3) of ICCPR sets out the grounds upon which the right to seek, receive and impart information and ideas on the internet may be limited. Namely, the restriction must be:
- Provided by law.
- Necessary for respect for the rights of others, and for the protection of national security or of public order, or of public health or morals.
To determine whether a limitation of the right to freedom of expression is justifiable, a three-stage test must be applied in which it must be established that the limitation is:
- Provided by law.
- Pursues a legitimate aim.
- Necessary for a legitimate purpose.(2)
It is important to note that articles 19(3) and 20 of the ICCPR are compatible, and the prohibited grounds listed in article 20 can also be restricted in terms of article 19(3) and must also pass the three-stage test. It is further necessary to note that within the context of article 20, there is a need to recognise the distinction between protected and unprotected speech, and between what is prohibited and what is discriminatory, derogatory and demeaning discourse. Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) provides that certain forms of expression are prohibited and punishable by law. These include:
- Dissemination of ideas based on racial superiority or hatred.
- Incitement to racial discrimination.
- Acts or incitement of violence against any race or group of persons of another colour or ethnic origin of racially motivated violence.
- The provision of assistance, including of a financial nature, to racist activities.
Three-stage test for the justifiable criminalisation of online speech
The first limb (that the restriction is provided for by law) is relatively straightforward in relation to the criminalisation of online speech. The legislation must be clear, accessible, apply equally to everyone and be consistent with international human rights norms. Despite this, governments continue to enact laws that are vague, and which give themselves wide-ranging powers, including the power to decide what constitutes a legitimate purpose to restrict freedom of expression. On counter-terrorism measures, General Comment 34 provides that any offences relating to the encouragement of terrorism or extremist activity, or to the praising, glorifying, or justifying of terrorism, should be clearly defined to ensure that they do not lead to unnecessary or disproportionate interferences with freedom of expression. Excessive restrictions on access to information must also be avoided.
The second limb (that it pursues a legitimate aim) is more complicated and is important for the broader discussion on the criminalisation of online speech. In the current digital and political climate, the criminalisation of online speech is commonly used for political or other illegitimate purposes. Although there are legitimate grounds to restrict freedom of expression on the basis of national security, it is frequently subject to abuse.
The third limb requires an assessment of whether the restriction is necessary, where legislation provides for restricting freedom of expression for the legitimate purposes of protecting national security, countering terrorism, ensuring public order, or respecting the rights of others. In respect of necessity and proportionality, a 2019 Report of the UNSR on FreeEx notes that “restrictions must be demonstrated by the state as necessary to protect a legitimate interest and to be the least restrictive means to achieve the purported aim.” A 2018 UNESCO report on world trends in freedom of expression and media development explains that this leg of the test can also cause controversy, when national security concerns are cited by states “to enact measures that present a clear challenge to media freedom, raising issues of necessity and proportionality.” States are often quick to justify restrictions without fully considering the principle of necessity and whether less restrictive means are available. With new online threats, states are also becoming more restrictive, often in violation of the above test.
The different legitimate aims and the potential concerns that arise are discussed below.
UNESCO has observed the growing trend of citing national security concerns as a justification for restricting freedom of expression. A legitimate national security interest is one that aims “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.” This definition was laid out in the 1985 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. The Siracusa Principles further provide that a national security limitation:
“cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order” and “cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exists adequate safeguards and effective remedies against abuse.”
The Johannesburg Principles on National Security, Freedom of Expression and Access to Information were drawn up in 1996 by a group of experts in international law, national security, and human rights. The principles state that in order for expression to be punished as a threat to national security, a government must show that:
- The expression is intended to incite imminent violence.
- It is likely to incite such violence.
- There is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
The Johannesburg Principles further provide that punishment (for disclosure of information) based on national security grounds is prohibited if the disclosure does not actually cause harm and is not likely to harm a legitimate national security interest.
The 2019 Declaration of the ACHPR further provides that “[f]reedom of expression shall not be restricted on public order or national security grounds unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of harm and the expression.”
Issues of national security have caused complications for the advancement of free expression for decades, including in the offline domain, as illustrated by the case note below.
Case note: Başkaya and Okçuoğlu v Turkey
In 1991, Mr Başkaya wrote a book which was published by Mr Okçuoğlu. Both Mr Başkaya and Mr Okçuoğlu are Turkish citizens. The book detailed the socio-economic revolution of Turkey and was critical of the ideology adopted by the state. The book came to the attention of the Turkish prosecution authorities, and Mr Başkaya was subsequently charged with disseminating propaganda against the indivisibility of the state. Mr Okçuoğlu was charged as the owner of the publishing company.
The National Security Court acquitted both men in 1992. However, the prosecutor subsequently successfully appealed the decision, which led to the matter being referred back to the trial court, which subsequently found both men guilty of the offences with which they had been charged. They were both sentenced to imprisonment and a fine. This decision was unsuccessfully appealed to the Court of Cassation, leading Mr Başkaya and Mr Okçuoğlu to approach the European Court of Human Rights (ECtHR).
Before the ECtHR,they argued, among other things, that their right to freedom of expression had been violated. The respondent state argued that the measures taken against the men were based on a law that was aimed at protecting interests such as territorial integrity, national unity, national security and the prevention of disorder and crime. The state further argued that they were convicted in pursuance of these legitimate aims since they had disseminated separatist propaganda vindicating the acts of the PKK (Workers’ Party of Kurdistan), a terrorist organisation, which threatened these interests.
In 1999, the ECtHR delivered its decision, noting that freedom of expression is one of the “essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment”, but may be subject to certain restrictions. The ECtHR emphasised that exceptions to freedom of expression must be construed strictly, and the need for any restrictions must be established convincingly. In conducting its limitations analysis, the ECtHR made the following observations:
- The requirement of “necessary” implies the existence of a “pressing social need”.
- The content of the impugned statements and the context in which they were issued must be considered when determining if the interference was “proportionate to the legitimate aims pursued”.
- Restrictions operate on a spectrum. There is little scope for restrictions on political speech or on debate on matters of public interest. However, there is a wider margin of appreciation when examining the need for an interference with freedom of expression in the context of remarks that incite violence.
The ECtHR, with due regard to Turkey’s context, found that the measures taken by the state were in furtherance of the legitimate aim to ensure national security. However, the conviction and sentencing of Mr Başkaya and Mr Okçuoğlu was disproportionate to the aims pursued and therefore not “necessary in a democratic society”. The ECtHR accordingly found that the right to freedom of expression had been violated.
National security can indeed be a legitimate aim; however, a restriction on freedom of expression must pass the other legs of the test as well, and cannot be justified on the legitimacy of national security grounds alone.
Case note: Good v Republic of Botswana
Mr Good, a political studies professor at the University of Botswana, was declared an undesirable inhabitant following the publication of a co-authored article which was critical of Botswana’s presidential succession. Mr Good was deported without reason and was not provided with an opportunity to challenge the decision. After unsuccessfully exhausting all internal remedies, Mr Good approached the ACHPR, where he alleged that his right to be heard, his right to freedom of expression, his right to freedom of movement and his right to family life, all contained in the African Charter, had been violated.
In response to the allegation regarding the restriction of Mr Good’s right to freedom of movement, the respondent state relied on national security as a justification, arguing that the ACHPR does not have competency over such issues as “[s]tates must be left alone and allowed to deal with matters of peace and national security”. The respondent state did not address the alleged restriction on freedom of expression, and Mr Good argued that the respondent state failed to illustrate the nature of the so-called national security threat posed and why the deportation could be justified as proportionate in severity and intensity to the publication of the academic paper.
Despite the lack of a full response from the respondent state, the ACHPR analysed the alleged infringement and found that there is international consensus on the need to restrict freedom of expression for national security, but such a restriction must be necessary, serve a legitimate interest and be provided for by law. The ACHPR went on to note that notwithstanding the fact that “in the African Charter the grounds of limitation to freedom of expression are not expressly provided as in the other international and regional human rights treaties, the phrase ‘within the law’ under Article 9(2) provides a leeway to cautiously fit in legitimate and justifiable individual, collective and national interests as grounds of limitation.”
When conducting the limitations analysis, the ACHPR emphasised that a “higher degree of tolerance is expected when it is a political speech and an even higher threshold is required when it is directed towards the government and government officials.” The ACHPR found that there was nothing in the article co-authored by Mr Good that could potentially create instability, unrest, or violence in the country; rather, it was merely the expression of opinions and views and did not amount to defamatory, disparaging, or inflammatory expression.
Ultimately, the ACHPR found that:
“The action of the [r]espondent [s]tate was unnecessary, disproportionate and incompatible with the practices of democratic societies, international human rights norms and the African Charter in particular. The expulsion of a non-national legally resident in a country, for simply expressing their views, especially within the course of their profession, is a flagrant violation of [a]rticle 9(2) of the Charter.”
Case note: SERAP v the Federal Republic of Nigeria
This case in the Community Court of Justice of the Economic Community of West African States (ECOWAS) also bears mention dealt with the Nigerian government’s response to Twitter’s removal of content tweeted by the President from its platform for violation of its rules.(3)
Nigeria suspended the operations of Twitter arguing that its ongoing operations constituted threats to the stability of Nigeria and that “Twitter is undermining Nigeria’s corporate existence” by allowing content that referred to separatist politics.
The ECOWAS Court emphasised the role of social media platforms such as Twitter as enablers of the rights to freedom of expression and access to information and held that the suspension was not made under any law or order of a court and that the government’s mere reference or allusion to national security threats posed by protests in the country and their supposed potential to destabilise Nigeria did not constitute legal justification for the infringement on the right to freedom of expression.
As evinced in these cases, there are times when states will rely on national security when it is in fact not a legitimate aim. In such instances, courts should be quick to find the distinction between legitimate threats and critical expression.
Terrorism and extremism, which are largely undefined and often misused terms, are frequently the basis for states to invoke restrictive measures on freedom of expression online in the name of national security. International human rights law provides extensive guidance for states on how to balance the real need to respond to terrorism, with the fundamental right to freedom of expression.
The 2015 Joint Declaration on Freedom of Expression and Responses to Conflict Situations by Special Rapporteurs on Freedom of Expression provides that:
“States should refrain from applying restrictions relating to ‘terrorism’ in an unduly broad manner. Criminal responsibility for expression relating to terrorism should be limited to those who incite others to terrorism; vague concepts such as glorifying’, ‘justifying’ or ‘encouraging’ terrorism should not be used.”
The 2016 Joint Declaration on Freedom of Expression and Countering Violent Extremism notes that:
“Everyone has the right to seek, receive and impart information and ideas of all kinds, especially on matters of public concern, including issues relating to violence and terrorism, as well as to comment on and criticise the manner in which [s]tates and politicians respond to these phenomena.”
The 2016 Joint Declaration further provides that states are obliged to ensure that there is an enabling environment for the media to keep society informed, “particularly in times of heightened social or political tensions”. This point is also emphasised in General Comment No. 34 on the ICCPR, which states that the media plays an important role in informing the public about acts of terrorism and that it should be able to perform its legitimate functions and duties in this regard without hindrance.(4)
At a minimum, if there is to be a limitation of access to the internet or to content online on the grounds of anti-terrorism, there should be transparency regarding the laws, policies and practices relied upon, clear definitions of terms such as ‘national security’ and ‘terrorism’, and independent and impartial oversight being exercised. There is also a general presumption in international law that prior restraint – restricting access to content before it has been published – is unnecessary and disproportionate. Although there may be a strong argument for the need to step in to stop the dissemination of information prior to publication of content relating to terrorism, the courts have stressed that prior restraint can only be allowed in exceptional circumstances and must be robustly justified.(5)
Public order offences
Public order offences can be developed and implemented to provide for legitimate aims, especially in the context of security forces. This means that laws which allow security forces to limit free speech to protect public order may be legitimate, as long as they comply with the requirements listed above. This legitimate aim is one that should not be abused due to the significant impact it can have on the people affected by the restriction on freedom of speech. This is particularly evident in the recent proliferation of internet shutdowns during crucial election periods. These acts are usually commissioned under the guise of maintaining public order, whereas they constitute an effort by states to silence dissent. The consequences of internet shutdowns are that the public’s right to access information, which may be crucial at a particular time, is violated.(6)
UNESCO Training Modules on Public Order and Freedom of Expression
In response to tensions between the maintenance of public order and the restrictions on freedom of expression, particularly in the context of journalism, UNESCO has developed training modules to empower both security forces and journalists to understand the law and their respective roles and responsibilities.
- The 2015 Freedom of Expression and Public Order Training Manual provides legal references and tools for security forces to promote transparency, facilitate and improve relations between security forces and the media, and encourage respect for the safety of journalists in the field.
- The 2018 Freedom of Expression and Public Order Fostering the Relationship between Security Forces and Journalists seeks to facilitate the relationship between security forces and journalists in order to establish an enabling environment for journalists. This training manual aims to empower journalists and citizens in order for them to exercise their rights to freedom of expression and access to information. It focuses on the importance of transparent law enforcement institutions, which respect freedom of expression and the right to information, and promote accountability and the rule of law while respecting human rights.
- In 2022, UNESCO, together with the International Police Association and IBZ Gimborn Castle launched a joint Massive Open Online Course (MOOC) for members of law enforcement and police officers to raise awareness of international and regional standards on freedom of expression, access to information, and safety of journalists.