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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 rights contained under article 19 of the ICCPR 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 UN Human Rights Committee’s (UNHRCtte) 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.(1) It also embraces expression that may be regarded by some as deeply offensive.(2) 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.(3)

    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: (i) the limitation must be provided for in law; (ii) it must pursue a legitimate aim; and (iii) it must be necessary for a legitimate purpose.(4) This test applies similarly to limitations of the right to freedom of expression under other legal instruments, including the African Charter.

    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.(5)

    In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed that:(6)

    “[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.”

    In 2016, the African Commission on Human and Peoples’ Rights (ACHPR) affirmed the UNHRC’s declaration and called on states to respect and to take legislative and other measures to guarantee, respect and protect citizens’ rights to freedom of information and expression through access to internet services.(7)

    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.(8) 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.(9)

    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.  Secondly, the rise of the internet has upended the traditional information eco-system in various ways.  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.(10) Nigeria and Ethiopia are just two examples of this rising trend.(11)

    The importance of protecting freedom of expression in this new digital age is emphasised by the new ACHPR Declaration on Freedom of Expression and Access to Information in Africa, published in April 2020.  The 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, where 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)
    • The Declaration “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)

    Footnotes

    1. OHCHR, General Comment No. 34 at para 11. (2011) (accessible at: https://www2.ohchr.org/english/bodies/hrc/docs/GC34.pdf). Back
    2. Ibid at para 11.  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 at pp 7-9 (accessible at: http://nrs.harvard.edu/urn-3:HUL.InstRepos:33746096). Back
    3. Ibid General Comment No. 34 at para 12. Back
    4. 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’ at pp 14-16 (2018) accessible at: https://www.mediadefence.org/sites/default/files/resources/files/MLDI.FoEManual.Version1.1.pdf). Back
    5. General Comment No. 34 above at n 4 at para 12. Back
    6. UNHRC, ‘Resolution on the promotion, protection and enjoyment of human rights on the internet’, A/HRC/32/L.20 (2016) at para 1 (accessible at: https://digitallibrary.un.org/record/845728?ln=en). Back
    7. 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
    8. Carver above at n 4 at p. 5. Back
    9. Ibid at p 5. Back
    10. 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
    11. 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
    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 at n 12 at Principle 39(4). Back
    15. Ibid at Principle 42. Back