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      The Right to Freedom of Expression Under International Law

      Module 1: Key Principles of International Law and Freedom of Expression

      Freedom of Expression Under International Law

      The United Nations was the first international entity to enshrine the right to freedom of expression in international law in 1948 with the UDHR. Article 19 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.”(1) This was the foundation of what later became Article 19 of the ICCPR. The rights contained under Article 19 comprise three core tenets:

      • the right to hold opinions without interference (freedom of opinion);
      • the right to seek and receive information (access to information); and
      • the right to impart information (freedom of expression).

      The right was further elaborated on in General Comment No. 34 by the UNHRCtte.(2) General Comment No. 34 on the ICCPR notes that the right to freedom of expression includes for example:

      • political discourse;
      • commentary on one’s own affairs and on public affairs;
      • canvassing, discussion of human rights;
      • journalism, cultural and artistic expression, teaching, and religious discourse.(3)

      It also embraces expressions that may be regarded by some as deeply offensive.(4)

      The right covers communications that are both verbal and non-verbal, and all modes of expression, including audio-visual, electronic and internet-based modes of communication.(5)

      In terms of article 19(3) of the ICCPR, the right to freedom of expression contained in article 19(2) may be subject to certain restrictions:

      The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities.  It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.”

      With respect to a limitation on the right to freedom of expression under article 19(2) of the ICCPR, a three-part test is used to assess whether such a limitation is justified:

      • the limitation must be provided for in law;
      • it must pursue a legitimate aim; and
      • it must be necessary for a legitimate purpose.(6)

      This test applies similarly to limitations of the right to freedom of expression under other legal instruments, including the African Charter.

      The ICCPR is not the only treaty within the United Nations framework to address the right to freedom of expression. For instance:

      • Article 15(3) of the ICESCR specifically refers to the freedom required for scientific research and creative activity, providing that: “The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.”
      • Articles 12 and 13 of the UN Convention on the Rights of the Child (CRC) contain extensive protections relating to the right to freedom of expression enjoyed by children in articles 12 and 13.
      • Article 21 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) contains extensive protections relating to freedom of expression and access to information about persons with disabilities in article 21.

      It is therefore clear that the right to freedom of expression is firmly entrenched within the United Nations system, both as an important right on its own, as well as a crucial enabling right. For example, as stated in General Comment No. 25, in the context of the right to participate in public affairs, voting rights and the right of equal access to public service, it was noted that:

      “Citizens can also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association.”(7)

      Freedom of expression online

      Article 19(2) of the ICCPR stipulates that the right to freedom of expression applies regardless of frontiers and through any media of one’s choice. General Comment No. 34 further explains that article 19(2) includes internet-based modes of communication.(8)

      In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed that:(9)

      “[T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”

      African regional standards

      In 2016, the African Commission on Human and Peoples’ Rights (ACHPR) affirmed the UNHRC’s declaration and called on states to respect and take legislative and other measures to guarantee, respect, and protect citizens’ rights to freedom of information and expression through access to internet services.(10) This was supplemented in 2019 by the Declaration of Principles on Freedom of Expression and Access to Information in Africa adopted by the ACHPR, which recognises the role of new digital technologies in the realisation of the rights to freedom of expression and access to information, and also affirms that the same rights that people have offline should be protected online in accordance with international human rights law and standards.(11)

      The 2019 Declaration differs from the 2002 Declaration in the following notable ways:

      • It emphasises the importance of access to information by dedicating an entire section to the subject, whereas the 2002 Declaration mentioned it only in the Preamble.
      • It calls on States to “recognise that universal, equitable, affordable and meaningful access to the internet is necessary for the realisation of freedom of expression [and] access to information.”(12)
      • It “articulates State obligations with respect to internet intermediaries, noting that States must ensure that internet intermediaries provide access to the internet in a non‑discriminatory manner and that the use of algorithms or other artificial intelligence uses do not infringe on international human rights standards;”(13)
      • It provides guidance on requests to remove online content.(14)

      It addresses the protection of personal information and communication surveillance and requires States to adopt laws regulating the processing of personal information.(15)

      In 2023 the ACHPR, together with other international bodies, issued a Joint Declaration on Media Freedom of Democracy due to the concern about the impact of online platforms on media freedom and freedom of expression. This declaration provides recommendations to States to secure and facilitate the media’s role as a vital institution and pillar of democracy, with particular attention to online media.(16)

      While freedom of expression is clearly protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, given how frequently the principle is enunciated in treaties, as well as other soft law instruments. Most human rights treaties, including those dedicated to the protection of the rights of specific groups — such as women, children, and people with disabilities — also make explicit mention of freedom of expression.

      Freedom of expression in the digital age

      In recent years, freedom of expression has been under attack from a variety of new and challenging sources.

      • First, the rise of social media and new media platforms has in many places decimated the revenue model for independent media, leaving many media houses weakened or bankrupt and unable to play their crucial role of holding power to account.
      • Second, the rise of the internet has upended the traditional information ecosystem. This has resulted in a backlash from governments seeking to regulate growing cybercrimes and a flood of misinformation, often to the detriment of freedom of expression and legitimate dissent.(17)

      Ethiopia has recently passed a controversial social media law that was criticised for restricting online speech, and Nigeria is attempting to do the same with the so-called ‘Social Media Bill.’(18) In 2022, South Africa’s Film and Publications Regulations came into force.(19) These Regulations have been heavily criticised as they essentially give an authority power to censor digitally distributed content.

      Other trends such as the rise of disinformation and States’ responses thereto, pose serious and increasing threats to freedom of expression online. Similarly, the increase in the use of sophisticated surveillance technology on mobile phones has given rise to restrictions on freedom of expression, particularly among journalists.(20)

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      Footnotes

      1. UN, ‘Universal Declaration of Human Rights’ (1948) (accessible at https://www.un.org/en/about-us/universal-declaration-of-human-rights). Back
      2. See https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf. Back
      3. OHCHR, General Comment No. 34 (2011) (accessible at https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf) at para 11. Back
      4. Id. For further discussion on this, see Nani Jansen Reventlow, ‘The right to ‘offend, shock or disturb’, or the importance of protecting unpleasant speech’ in Perspectives on harmful speech online: A collection of essays, Berkman Klein Center for Internet & Society (2016) (accessible at http://nrs.harvard.edu/urn-3:HUL.InstRepos:33746096) at pp 7-9. Back
      5. See above n 4 at para 12. Back
      6. For a fuller discussion on how freedom of expression may be legitimately limited, see the training manual published by Media Defence on the principles of freedom of expression under international law: Richard Carver, ‘Training manual on international and comparative media and freedom of expression law’ (2018) (accessible at https://www.mediadefence.org/sites/default/files/resources/files/MLDI.FoEManual.Version1.1.pdf) at pp 14-16. For more on proportionality see the 2002 decision of Attorney-General v ‘Mopa in the Lesotho Court of Appeal (accessible at https://lesotholii.org/ls/judgment/high-court/2002/3) and Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v Zimbabwe in the ACHPR (2009) (accessible at https://africanlii.org/afu/judgment/african-commission-human-and-peoples-rights/2009/98). Back
      7. UNHRCtte General Comment No. 25 (1996) (accessible at https://www.equalrightstrust.org/ertdocumentbank/general comment 25.pdf).) at para 8. Back
      8. See above n 4 at para 12. Back
      9. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’ A/HRC/32/L.20 (2016) (accessible at https://digitallibrary.un.org/record/845728?ln=en) at para 1. Back
      10. ACHPR, ‘Resolution on the right to freedom of information and expression on the internet in Africa’ ACHPR/Res.362, (2016) (accessible at https://www.achpr.org/sessions/resolutions?id=374). Back
      11. ACHPR, ‘Declaration of Principles on Freedom of Expression and Access to Information in Africa’ (2019) (accessible at https://www.achpr.org/public/Document/file/English/Declaration of Principles on Freedom of Expression_ENG_2019.pdf). The Declaration replaces the Declaration of Principles on Freedom of Expression in Africa which the African Commission adopted in 2002 (accessible at https://www.achpr.org/presspublic/publication?id=3).). Back
      12. ACHPR, ‘Declaration of Principles on Freedom of Expression and Access to Information in Africa’, Principle 37(2) (2019) (accessible at https://www.achpr.org/legalinstruments/detail?id=69). Back
      13. International Justice Resource Center, ‘New ACHPR Declaration on Freedom of Expression & Access to Information’ (2020) (accessible at https://ijrcenter.org/2020/04/22/new-achpr-declaration-on-freedom-of-expression-access-to-information/”). Back
      14. ACHPR above n 11 at Principle 39(4). Back
      15. Id at Principle 42. Back
      16. ACHPR, ‘Joint Declaration on Media Freedom and Democracy’ (2023) (accessible at https://achpr.au.int/en/news/press-releases/2023-05-04/joint-declaration-media-freedom-and-democracy). Back
      17. For more see Washington Post, ‘There’s a worrying rise in journalists being arrested for ‘fake news’ around the world’ (2019) (accessible at https://www.washingtonpost.com/world/2019/12/12/theres-worrying-rise-journalists-being-arrested-fake-news-around-world/) and Freedom House, ‘The Rise of Digital Authoritarianism: Fake news, data collection and the challenge to democracy’ (2018) (accessible at https://freedomhouse.org/article/rise-digital-authoritarianism-fake-news-data-collection-and-challenge-democracy). Back
      18. Al Jazeera ‘Nigerians raise alarm over controversial Social Media Bill’ (2019) (accessible at https://www.aljazeera.com/news/2019/12/18/nigerians-raise-alarm-over-controversial-social-media-bill) and Al Jazeera, ‘Ethiopia passes controversial law curbing ‘hate speech’ (2020) (accessible at https://www.aljazeera.com/news/2020/02/ethiopia-passes-controversial-law-curbing-hate-speech-200213132808083.html). Back
      19. Business Tech ‘New internet censorship regulations for South Africa’ (2022) (accessible at https://businesstech.co.za/news/government/622355/new-internet-censorship-regulations-for-south-africa/). Back
      20. Forbidden Stories ‘Journalists under surveillance’ (2021) (accessible at https://forbiddenstories.org/pegasus-journalists-under-surveillance/”). Back