- 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.
Following from the UN Charter, Article 19 of the International Covenant on Civil and Political Rights probably is the most cited human rights article in discussions on freedom of expression and media freedom. Intergovernmental organisations on international and regional level such as the United Nations, the African Union, the Organisation of American States and the European countries organised in the Council of Europe and the European Union have developed human rights standards and instruments (such as treaties, conventions, declarations) and mechanisms (such as courts, special rapporteurs and commissions). The latter are separately discussed here.. Included in there are protection of freedom of expression and media freedom.
These international and regional human rights systems form the normative framework underpinning the enabling environment for the media and create positive obligations for member states towards its citizens and media professionals. These instruments area form of soft law, which denotes ‘agreements, principles and declarations that are not legally binding. […] Hard law refers generally to legal obligations that are binding on the parties involved and which can be legally enforced before a court’ (source).
While not a human rights instrument per se, UN Sustainable Development Goal 16.10 ‘Promote just, peaceful and inclusive societies’ and its target 16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements, will be discussed here too. Member States are expected (but not required) to report on progress towards this target and progress (or decline) will have impact on the enabling environment for the media.
Below, an overview is presented of the human rights standards, instruments and mechanisms relevant to freedom of expression and media freedom. Further discussion of these mechanisms and options for advocacy can be found under the tab International organisations, platforms and networks and Advocacy Resources.
Standards and instruments
UNESCO has listed international and regional standards on Freedom of Expression. This includes the International Covenant on Civil and Political Rights, African Charter on Human and Peoples’ Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention on Human Rights and the ASEAN Human Rights Declaration.
International and Regional Standards on Freedom of Expressionhttps://en.unesco.org/sites/default/files/international_standards_on_freedom_of_expression_eng.pdf
While Article 19 of the International Covenant on Civil and Political Rights (ICCPR) is the most prominent standard on freedom of expression, two other standards from the ICCPR stand out that are relevant for the enabling environment for media. Article 17 and Article 20 are fundamental to discussions on the right to privacy offline and online and respectively discussions on disinformation and hate speech.
- No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation
- Everyone has the right to the protection of the law against such interference or attacks
- Any propaganda for war shall be prohibited by law
- Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law
It should be noted here that the ICCPR Articles cannot be read in isolation from other Conventions and Covenants. There is an inherent tension between Articles 19 and 20 of the ICCPR vis-a-vis Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, as described in this article. This theme page will not go deeper into this debate, See also the resources section below.
Read more on Article 17 of the ICCPRThe International Network of Civil Liberties Organisations in 2018 submitted input on human rights challenges relating to privacy in the digital age to the Human Rights Council. The issues and challenges in the submissions are particularly relevant for journalists and news media and address: Encryption and anonymity; Reliance on data driven technology; Undue interferences with the right to digital privacy for vulnerable groups; Safeguards against surveillance, processing, and interception of digital communications https://www.ohchr.org/Documents/Issues/DigitalAge/ReportPrivacyinDigitalAge/INCLO.pdf
Read more on the relationship between Articles 19 and 20 of the ICCPRWhile freedom of expression is a human rights enshrined in the ICCPR, it is not absolute. ‘Both international law and most national constitutions recognise that freedom of expression may be restricted. However, any limitations must remain within strictly defined parameters’. In this Article19 expert meeting report on the links between both articles, these limitations are discussed, focusing on the observation that ‘[t]here is, however, no agreed definition of propaganda or hate speech in international law. Instead, there are marked different regional or national approaches in restricting it‘.
The policy brief ‘Prohibiting incitement to discrimination, hostility or violence’ of Article19 addresses the relationship between the two articles from the perspective of international and regional human rights instruments and offers recommendations for interpreting Article 20.
UN Sustainable Development Goal 16: Promote just, peaceful and inclusive societies
The Sustainable Development Goals (SDGs) are a collection of 17 human rights based global goals designed to be a “blueprint to achieve a better and more sustainable future for all” by 2030. UN Sustainable Development Goal 16 includes target 16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements. UN Member States are expected (but not required) to report progress by collecting data on two indicators through so-called Voluntary National Reviews (VNRs) (text continues below infographics).
SDG Indicator 16.10.1 Journalist and media killings
Definition: Indicator 16.10.1 is the
number of verified cases of killing, kidnapping, enforced disappearance, arbitrary detention and torture of journalists, associated media personnel, trade unionists and human rights advocates in the previous 12 months.
SDG Indicator 16.10.2 Public access to information
Definition: Indicator 16.10.2 is the
number of countries that adopt and implement constitutional, statutory and/or policy guarantees for public access to information.
Media development and media support organisations can engage in the implementation of the SDGs on national level through the VNR process through stakeholder engagement in national review and implementation. A 2019 report released by Together 2030 and Newcastle University discusses the results of a survey that focuses on civil society awareness and participation in VNRs in 47 countries and the lack of progress on SDG implementation.
The Universal Rights Group think tank has created a rough guide to the Regional Human Rights Systems which discusses both the instruments as the mechanisms. The regions covered are Africa, the Americas and Europe.
Read more on the regional instrumentshttps://www.universal-rights.org/human-rights-rough-guides/a-rough-guide-to-the-regional-human-rights-systems/
The Danish Institute for Human Rights has developed this excellent human rights guide to the human rights-based Sustainable Development Goals. This is a database that connects specific provisions of more than 50 global and regional human rights instruments, including the UPR, to the Sustainable Development Goals and is available in multiple languages. Check out this overview of all human rights instruments in relation to target SDG16.10. Regional human rights instruments that are covered i.a. are:
- African Charter on Human and Peoples’ Rights (ACHRP)
- American Convention on Human Rights
- European Convention for the Protection of Human Rights and Fundamental Freedoms
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.
The American Convention on Human Rights (ACHR) is an international human rights instrument that 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
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.
Council of Europe
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.
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. The Parliamentary Assembly promotes greater involvement in the OSCE by national parliaments and i.a. supports the strengthening and consolidation of democratic institutions in OSCE participating States.
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).