Limiting Media Freedom on the Grounds of National Security

Module 9: National Security

International law only allows the right to freedom of expression to be limited on grounds of national security where this is explicitly provided by law and the restriction is necessary and proportionate in an open and democratic society. In practice, however, national security is one of the most problematic areas of interference with media freedom.

One difficulty is the tendency on the part of many governments to assume that it is legitimate to curb all public discussion on national security issues. Yet, according to international standards, expressions may only be lawfully restricted if they threaten actual damage to national security and if the restriction is necessary and proportionate to countering this threat.

In Mat Shuhaimi bin Shafiei v. Malaysia,(1) the Federal Court of Malaysia (the highest appellate court) ruled that a legislative provision criminalising sedition was unconstitutional after finding it to be a disproportionate restriction on freedom of expression and inconsistent with a constitutional guarantee of equality under the law. The sedition provision under review provided that the intention of the perpetrator was irrelevant.(2) The Court found this departure from general criminal law practice to constitute a disproportionate restriction on freedom of expression, noting that even more “socially abhorrent and heinous crimes” included, at a minimum, a rebuttable presumption that shifted the burden to the accused to disprove intent, as opposed to wholly displacing mens rea and creating a strict liability regime.(3)

The Johannesburg Principles

In 1995, a group of international experts met to discuss the Johannesburg Principles on Freedom of Expression and National Security.(4) Although non-binding, these principles are frequently cited (notably by the UN Special Rapporteur on freedom of expression) as a progressive summary of standards in this area. The Johannesburg Principles address the circumstances in which the right to freedom of expression might legitimately be limited on national security grounds, while also underlining the importance of the media, and freedom of expression and information, in ensuring accountability in the realm of national security.

In 2013, a group of civil society organisations from across the globe — including some who were involved in the drafting of the Johannesburg Principles — published an updated version, focusing on access to information, known as the ‘Tshwane Principles.’(5) The Tshwane Principles state that:(6)

Governments may legitimately withhold information in some narrowly defined areas, such as defence plans, weapons development, and the operations and sources used by intelligence services.

Information about serious human rights violations may not be classified or withheld on national security grounds.
People who disclose wrongdoing or other information of public interest (whistleblowers and the media) should be protected from any type of retaliation, provided they acted in good faith and followed applicable procedures.
Disclosure requirements apply to all public entities, including the security sector and intelligence authorities.

Although the principles do not constitute binding international law, they were developed with wide consultation and have broad consensus; for example, they have been welcomed by all four of the special experts on freedom of expression — for the UN, the Organisation of American States (OAS), and the African Union (AU), and the Organisation for Security and Cooperation in Europe’s (OSCE) expert on freedom of the media.(7)

Footnotes

Rayan Sivil No. W-01(A)-115-04/2015 (2016), (accessible at: https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2016/11/Mat-Shuhaimi-Shafiei-v-Kerajaan-Malaysia-Judgment-CoA.pdf).
Id. at para 30.
Id. at para 40.
Article 19: Global Campaign for Free Expression, ‘The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information,’ (1996) (accessible at: https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf).
Open Society Justice Initiative, ‘Understanding the Global Principles on National Security and the Right to Information’ (2013) (accessible at: https://fas.org/sgp/library/tshwane-und.pdf).
Open Society Justice Initiative, ‘The Tshwane Principles on National Security and the Right to Information: An Overview in 15 Points’(accessible at: https://www.justiceinitiative.org/publications/tshwane-principles-national-security-and-right-information-overview-15-points#:~:text=Related%20Work-,The%20Tshwane%20Principles%20on%20National%20Security%20and%20the%20Right%20to,and%20national%20law%20and%20practices).
Open Society Justice Initiative, ‘Understanding the Global Principles on National Security and the Right to Information’ (2013) (accessible at: https://fas.org/sgp/library/tshwane-und.pdf).