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Freedom of Expression Can Be Limited Only in “Exceptional Circumstances”

Gustavo Capdevila

GENEVA, Jul 26 2011 (IPS) - The United Nations Human Rights Committee confirmed the central role of freedom of expression in human rights, making it clear that it can only be limited in the most exceptional circumstances, and calling for the first time for unrestricted public access to official information.

After two years of debate, the Committee has produced a General Comment that outlines the admissible restrictions on freedom of expression.

Article 19 – the International Centre Against Censorship told IPS in an email exchange with the group’s headquarters in London that it welcomed the Committee’s General Comment.

The organisation is named after Article 19 of the Universal Declaration of Human Rights, which guarantees freedom of expression, as does the same article in the International Covenant on Civil and Political Rights (ICCPR).

Although the General Comment does not discuss specific cases, the interpretations adopted Jul. 21 would apply to incidents involving freedom of expression, such as the violent protests triggered by the 2005 publication of cartoons of the Prophet Mohammad by a newspaper in Denmark, or more recently, the wiretapping scandal involving Australian media magnate Rupert Murdoch

“What this General Comment does is, in a very forthright and detailed way, re-emphasise the central role that freedom of expression plays for all human rights,” Michael O’Flaherty, a member of the U.N. Human Rights Committee and rapporteur for the draft General Comment, told IPS in an interview.

In the document, the Committee – whose task is to oversee the compliance of U.N. member states with the ICCPR – “makes clear that freedom of expression can only be limited in the most exceptional circumstances,” the Irish academic human rights lawyer said.

The Committee, which is made up of 18 independent experts, also identified and offered “some detail about the right of access to information,” O’Flaherty added. “And it’s the first time this element of the right has been addressed by the Human Rights Committee, and in fact it’s been very rarely addressed in international human rights law before now.”

Article 19 Senior Legal Officer Sejal Parmar told IPS that the organisation welcomed “the positive recognition of the right of access to information as a human right and important dimension of freedom of expression” and “the affirmation that any restrictions on websites, internet-based media and information systems such as internet service providers should be compatible with freedom of expression.”

The advanced version of the General Comment is to be released in English on Jul. 19, at the end of the Committee’s second annual session. Final approval of the text is to come at the October meeting, when the official translations into the other two working languages, Spanish and French, have been completed.

O’Flaherty said “the strength of the General Comment is evidenced for example in the language that was adopted by the Committee around issues such as blasphemy and insult to religion, where the Committee made clear that limits on freedom of expression for these reasons can only be in the very exceptional situations laid out elsewhere in the (ICCPR) that deal with incitement to hatred and discrimination on religious or racial grounds and so forth.”

Fabián Salvioli, another member of the Committee, said it did not linger on specific questions, like the Mohammad cartoons.

That was not necessary, he told IPS, “because the paragraph on blasphemy is very clear. Statements and other forms of expression, even offensive ones, should not be penalised, unless they incite hatred, which is something different.”

Article 20 of the ICCPR says: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Article 19, which works worldwide to combat censorship by promoting freedom of expression and access to official information, also applauded the Committee’s decision “to strengthen its position against blasphemy laws.”

Parmar noted that Paragraph 50 of the General Comment states that “prohibitions of displays (of) a lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the ICCPR except in specific circumstances envisaged in Article 20(2) of the Covenant.”

The senior legal officer added that “it would be impermissible for such laws to discriminate against one or certain religions or belief systems or their adherents over another, or religious believers over non-believers” or “for such laws to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.”

Salvioli disagreed with the suggestion that the scandal over phone hacking by Rupert Murdoch’s news¬papers in the United Kingdom may demonstrate the need for limits on freedom of expression.

“Freedom of expression is not absolute, it already has limits,” he said. “It’s a right that is subject to limitations that are clearly outlined in article 19.3 of the ICCPR.”

The Argentine expert stressed that the Committee has jurisprudence on this question, and that any limitation that is not rational or proportionate and that fails to meet the requisites set out in article 19.3 is inconsistent with the ICCPR.

Article 19.3 of the ICCPR establishes that freedom of expression may “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 or of public health or morals.”

“The Committee’s General Comment doesn’t say this, it’s my personal opinion: any restriction should be strictly evaluated,” Salvioli said. “That is, we cannot give a broad interpretation to restrictions of freedom of expression.

“The General Comment also provides indications on the obligation of states to guarantee media pluralism. That is another very important aspect,” he added.

Freedom of expression implies the right of people to receive information from diverse sources, which means the concentration of power, in either state or private monopolies, should be curbed, in the search for fairness, balance and media plurality, he said.

But the Committee does not tell the state how to do this, Salvioli clarified; it merely says it is the state’s responsibility to take measures, “although it should know that it has the obligation to guarantee the broadest possible access to information,” he said.

Another paragraph in the General Comment is dedicated to what are referred to as “memory laws” – which is not a legal term, but “just a quick way to describe the laws,” O’Flaherty said.

The U.N. Committee document “makes clear that no State can tell people what to think,” he said, adding that “therefore any laws that prohibit the publication of versions about the past, or different interpretations of history have to be constructed with great care, so that they don’t violate the freedom of a person to hold an opinion and they don’t go beyond what’s allowed to be restricted under the freedom of expression.”

Salvioli noted that some countries have passed memory laws. But the Committee clearly states in the General Comment that no law can keep people from expressing themselves freely on historical events – although these opinions must not be an apology for national, racial or religious hatred, as the ICCPR establishes, the expert stressed.

IPS asked O’Flaherty: If freedom of expression means access to information, then does it also cover the right to communicate?

“Oh, most certainly,” he responded. “I mentioned access to information just because that’s something new in the General Comment, but the vast bulk of this document is about exactly what you just described. It’s about your central and important human right to communicate with others, necessary not only in itself but because so many other human rights depend on it.”

The General Comment also grapples with the way new technologies are changing expression, he said.

“What we found though, is that even the information platforms are changing, that the fundamental principles that were already clearly addressed with regard to, let’s say, the traditional media, transfer over in a very logical and foreseeable way to the new media as well,” O’Flaherty said.

“Perhaps the one change would be a recognition by us and in the General Comment that the function of journalism is also changing,” he added.

Parmar’s statement says paragraph 50 “is a success for a number of organisations led by Article 19 who had argued that the Human Rights Committee should highlight the inconsistency between Article 19 of the Covenant and blasphemy laws.

“It also follows the decision of the (U.N.) Human Rights Council to reject the concept of ‘defamation of religions’ in a resolution on discrimination against persons based on religion or belief in April 2011,” he added.