The right to freedom of expression and freedom of information is a universal human right enshrined in article 19 of the Universal Declaration of Human Rights (UDHR)1 and the International Covenant on Civil and Political Rights (ICCPR)2. Both international instruments were adopted within the United Nations (UN).
Article 19 ICCPR thus constitutes the basic pillar to understand how and to what extent the mentioned rights are protected within the universal human rights system:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice
- 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.
The applicability of these international standards means that at the national level, all member states of the international community must recognize and protect a minimum of freedom of expression for all individuals. Freedom of expression and freedom of information are granted to “everyone”, and not only media outlets or professional journalists. Every single person has the human right to freely seek, receive and disseminate ideas, opinions and information.
It is true that States have a “margin of appreciation” which allows them to implement their own legislative and regulatory policy, but international law must also be respected in the sense that there would be a series of restrictions, obligations and limitations the introduction of which would be prohibited.
In particular, all restrictions, regulations and limitations that affect the right to freedom of expression and the right to freedom of information must, in accordance with international law, be provided for by a clear and precise legal instrument, be oriented towards the protection of the rights and interests provided for in paragraph 3 of Article 19 already mentioned and respect the principles of necessity and proportionality. That is, the measures in question must be strictly necessary and involve the least possible restriction on the rights in question. This “three-part” test is an obligation that derives from international law and is therefore applicable to all public policy, legislation and regulation adopted at national level.
Expression should be understood as an individual communicative conduct which occurs within the public sphere with the aim of transmitting ideas, opinions or sentiments. The free expression of people, therefore, contributes to individual self-determination and to full development of personality, creating the conditions for participation in public discussion processes and social and political change. In addition, expression and communication are basic elements of democracy to the extent that they are a fundamental prerequisite for the effectiveness of citizen control and accountability of public powers. Communication in democracy should thus be understood from both an individual and a “collective” perspective.
A particular aspect of the rights recognized in article 19 ICCPR is the protection of the right to freedom of information. As explained in a recent UNESCO 2019 in-focus report on access to information3, this right is founded on the broader right to freedom of expression, which encompasses not only the right to impart opinion and information, but also the right to seek and receive such content. ATI as a right is particularly relevant as regards official information held by public authorities4.
Article 20 of the ICCPR
Besides the general regime established in article 19 ICCPR (introducing a general protection and restrictive exceptions), the international human rights system also incorporates a specific provision which incorporates clearly established obligations for States to forbid certain categories of speech (article 20 ICCPR):
“1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
Being true that article 20.2 ICCPR contains a broad definition of hate speech, it is the responsibility of the national legislator, as well as national judicial operators, to make a proper assessment of each piece of content on the basis of principles, rules and conditions established in international law. In particular, it is important to note the threshold test on hate speech extracted from the Rabat Plan of Action, which permits to assess if a particular statement reaches the level of actual incitement to discrimination, hostility or violence. The Rabat framework test lays out six parameters to check if a statement may amount to a criminal offence. On a case-by-case basis, the test looks into the context, speaker, intent, content, extent of the speech, and likelihood of harm6
This international recognition of the right to freedom of expression and freedom of information is also affirmed within the framework of regional human rights standards. These are the European Convention on Human Rights (article 10 – European Convention)7, the Charter of Fundamental Rights of the European Union (article 11 – EU Charter)8, the American Convention on Human Rights (article 13 – American Convention)9 and the African Charter on Human and Peoples’ Rights (article 9 – African Charter)10.
Read more on the regional instrumentshttps://www.universal-rights.org/human-rights-rough-guides/a-rough-guide-to-the-regional-human-rights-systems/
Council of Europe
The European Convention was adopted within the context of the Council of Europe (CoE), which is the leading international human rights organization in Europe. The CoE integrates 47 member States.
The right to freedom of expression and freedom of the media is protected by Article 10 of the European Convention of Human Rights (ECHR). Principles regarding freedom of expression are established by the European Court of Human Rights’ case law. In this document, an overview is given of the CoE guidelines and activities to promote freedom of expression in the media. The Freedom of Expression pages of the CoE contain information, standards, reports on the nine media-related issue areas it works (e.g. gender and media, safety of journalists, community media) with a separate section on internet governance, as well as an overview co-operation activities and projects (such as providing expertise and promoting standards that emanate from Article 10, case law, recommendations, declarations and guidelines). See also their Media Freedom Alerts database, for alerts on freedom of expression and media freedom.
The EU Charter is a document that brings together all the personal, civic, political, economic and social rights enjoyed by people within the European Union in a single text which became legally binding with the entry into force of the Treaty of Lisbon, in December 2009. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union and to the 27 Member States only when they are implementing Union law.
Article 11 of the Charter of Fundamental Rights (CFR) of the European Union (which corresponds to Article 10 of the ECHR – see below) holds that everyone has the right of freedom of expression and that freedom and pluralism of the media shall be respected. The most important instruments in the toolbox. On the webpage for Article 11 of the CFR of the EU Agency for Fundamental Rights, one can find case law references, counterparts in national constitutional law of EU members states, EU law and international law. The main EU law instrument is the EU Human Rights Guidelines on Freedom of Expression Online and Offline.
The European Instrument for Democracy and Human Rights (EIDHR) is an EU Action Programme that aims at providing (financial) support for the promotion of democracy and human rights in non-EU countries. The current Commission is at the moment of writing developing a new EU Action Plan for Human Rights and Democracy Other relevant developments for the enabling environment for freedom of expression and media freedom are the proposal for a Digital Services Act and the proposal for a new Competition Tool.
Organisation for Security and Cooperation in Europe
Recognized as a regional arrangement under Chapter VIII of the United Nations Charter, the OSCE is a primary instrument for early warning, conflict prevention, crisis management and post-conflict rehabilitation in its area. It should however not be seen as an international or regional standard setting body. The OSCE Office for Democratic Institutions and Human Rights (ODIHR) provides participating States with advice and assistance, and supports individuals and civil society with targeted training and education. ODIHR covers a broad spectrum of issues, including human rights defenders. Freedom of the media is dealt with exclusively through a Special Representative (see international mechanisms).
The American Convention on Human Rights (ACHR) is an international human rights instrumentsigned in San José by a relevant number of States in the Americas and overseen by organs of the Organization of American States (OAS) and has been ratified by 11 out of 23 countries in the Western Hemisphere. It is overseen by the Inter-American Court of Human Rights, an autonomous judicial institution, and the Inter-American Commission on Human Rights (IACHR). These are both organs of the Organisation of American States (OAS). Article 13 on Freedom of Expression of the ACHR groups together Article 19 and 20 of the ICCPR. The Office of the Special Rapporteur for Freedom of Expression i.a. advises the IACHR, conducts visits to OAS Member States, provides technical advisory support and promotes and reports on the situation regarding right to freedom of thought and expression in OAS Member States. IACHR decisions can be found by topic on the page of the Special Rapporteur on the OAS website, and are classified under:
- Violence, threats and hostilities against members of the media
- Subsequent imposition of sanctions due to expression
- Direct and indirect censorship
- Access to information
The African Charter was adopted by African States members of the Organization of the African Union. On the website of the ACHRP, key documents can be found related to principles of freedom of expression and access to information and intersession activity reports, describing the Situation of Freedom of Expression and Access to Information in Africa on issues such as freedom of expression online and offline, criminal defamation, media shutdowns, access to information and protection of journalists.
Asia and the Arab World
Other regions or sub-regions, such as parts of Asia or the Arab world, do not count on comparable structures or legal standards, although there are a few legal and political instruments that need to be mentioned.
The Arab Charter on Human Rights guarantees “the right to information and to freedom of opinion and expression, as well as the right to seek, receive and impart information and ideas through any medium, regardless of geographical boundaries” (article 32)11. The Sana’a Declaration on Promoting Independent and Pluralistic Arab Media was endorsed by the General Conference of UNESCO at its 29th Session in Paris, in 199712. In 2016, over 100 representatives of journalists’ unions, human rights organizations and media groups from across the Arab World adopted in Casablanca the Declaration on Media Freedom in the Arab World13.
In Asia-Pacific, Principle 23 of the ASEAN Human Rights Declaration contains a reference and recognition of the right to freedom of expression. This right is also recognized as a fundamental right in the constitutions of several countries in this area (for example in India, Malaysia, Singapore, Japan, Indonesia, Timor Leste or Korea).
1 Available online at: https://www.un.org/en/universal-declaration-human-rights/
2 Available online at: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
3 Available online at: https://unesdoc.unesco.org/ark:/48223/pf0000371485
4 See the Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression on access to information and secrecy legislation of 6 December 2004 (available online at https://www.article19.org/resources/joint-declaration-access-information-secrecy-legislation/) and the report by the UN Special Rapporteur on Freedom of Opinion and Expression A/68/362 on the right to access to information (available online at https://documents-dds-ny.un.org/doc/UNDOC/GEN/N13/464/76/PDF/N1346476.pdf?OpenElement).
7 Available online at: https://www.echr.coe.int/documents/convention_eng.pdf
9 Available online at: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm
10 Available online at: https://www.achpr.org/legalinstruments/detail?id=49