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 guaranteed by article 19 of the ICCPR comprise three distinct but interrelated rights: 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 provides the Committee’s authoritative views on the correct interpretation of article 19. In this comment, the Committee 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 communication, including audio-visual, electronic and internet-based.(3)
Under 19(3) of the ICCPR, the right to freedom of expression may legitimately be subject to certain restrictions. A three-part test is used to assess whether such a restriction is justified: (i) the restriction must be provided for in law; (ii) it must pursue a legitimate aim; and (iii) it must be necessary to protect a legitimate aim.(4) The ICCPR provides an exhaustive list of legitimate aims, namely the rights or reputations of others or national security, public order, public health or morals. A similar test applies to the right to freedom of expression as guaranteed under other legal instruments.
In relation to the first step of this tripartite test, the requirement that a restriction be “provided by law”, the UNHRCtte provides the following guidance:
For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.(5)
UN Human Rights Committee, General Comment No. 34.
The requirement that a restriction of freedom of expression be ‘necessary’ for a legitimate purpose implies that the restriction is proportionate. The UNHRCtte notes the following:
Restrictions must not be overbroad. The Committee observed in general comment No. 27 that “restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”.(6)
UN Human Rights Committee, General Comment No. 34.
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 confirms that article 19(2) protects digital modes of communication.(7)
In a 2016 resolution, the UN Human Rights Council (UNHRC) affirmed(8):
“[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.”
While freedom of expression is protected by a considerable body of treaty law, it can also be regarded as a principle of customary international law, as evidenced, inter alia, by how frequently the principle is enunciated in treaties, other soft law instruments and constitutional guarantees.(9) Many 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.(10)
Freedom of expression in the digital age
In recent years, freedom of expression has been under attack in a variety of new and challenging ways. First, the rise of social media and new media platforms has in many countries decimated the revenue model for independent media, leaving many media houses financially strapped and unable to consistently 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.(11) Many states in South and Southeast Asia have been following this unfortunate trend of reacting to novel digital challenges through new laws and policies that are inconsistent with international standards.(12)