Summary
Freedom of expression may only be restricted under certain circumstances as are prescribed by law and are necessary in a democratic society.
Obligations
Election Parts
Issues
Criteria
- Freedom of opinion and expression was protected throughout the campaign process
- Freedom of opinion and expression by the media was respected throughout the electoral process. In addition, the media respected the freedom of opinion and expression of others
- The media aired debates between candidates and provided voter education
Quotes
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions and restrictions as are prescribed by law and are necessary in a democratic society.
- 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.
- The exercise of the right provided for in the foregoing paragraph [freedom of expression] shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: (b) the protection of national security, public order, or public health or morals.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
- The Committee notes that it is for the State party to show that the restriction on the author’s freedom of speech was necessary in the present case. Even if a State party may introduce a permit system aiming to strike a balance between an individual’s freedom of speech and the general interest in maintaining public order in a certain area, such a system must not operate in a way that is incompatible with article 19 of the Covenant. In the present case, the author made a public address on issues of public interest. On the evidence of the material before the Committee, there was no suggestion that the author’s address was either threatening, unduly disruptive or otherwise likely to jeopardise public order in the mall; indeed, police officers present, rather than seeking to curtail the author’s address, allowed him to proceed while videotaping him. The author delivered his speech without a permit. For this, he was fined and, when he failed to pay the fine, he was held in custody for five days. The Committee considers that the State party’s reaction in response to the author’s conduct was disproportionate and amounted to a restriction of the author’s freedom of speech which was not compatible with article 19, paragraph 3, of the Covenant. It follows that there was a violation of article 19, paragraph 2, of the Covenant.
- The Court recalls that in its above-mentioned Vogt judgment (pp. 25–26, § 52) it articulated as follows the basic principles laid down in its judgments concerning Article 10: (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established. (ii) The adjective “necessary”, within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
- Regarding the author’s claim under article 21 of the Covenant, the Committee considers that the State party has failed to demonstrate that the restrictions imposed on the author were necessary in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
- The Committee recalls, first, that right to freedom of expression is not absolute and that its enjoyment may be subject to limitations.However, pursuant to article 19, paragraph 3, only such limitations are permissible as are provided for by law and that 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 Committee reiterates in this context that the right to freedom of expression is of paramount importance in any democratic society, and that any restrictions on its exercise must meet strict tests of justification.
- The Committee recalls that under article 25(b), every citizen has the right to vote, and that in order to protect this right, States parties to the Covenant should prohibit any intimidation or coercion of voters by criminal laws and that such laws should be strictly enforced.The application of such laws constitutes, in principle, a lawful limitation of the right to freedom of expression, necessary for the respect of the rights of others. Any situation in which voters are subject to intimidation and coercion must, however, be distinguished from a situation in which voters are encouraged to boycott an election without any form of intimidation.
- Paragraph 2 [of Art. 19, ICCPR] requires protection of the right to freedom of expression, which includes not only freedom to “impart information and ideas of all kinds”, but also freedom to “seek” and “receive” them “regardless of frontiers” and in whatever medium, “either orally, in writing or in print, in the form of art, or through any other media of his choice”. Not all States parties have provided information concerning all aspects of the freedom of expression. For instance, little attention has so far been given to the fact that, because of the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression in a way that is not provided for in paragraph 3 [of Art. 19, ICCPR].
- The Committee has to consider whether the restrictions imposed on the author's right to freedom of expression are justified under any of the criteria set out in article 19, paragraph 3. The Committee observes that, in the present case, the State party has merely argued that the right to freedom of expression as guaranteed by article 19, paragraph 2, of the Covenant, may be subject to limitations as provided for by law (article 19, paragraph 3, of the Covenant and article 32 of the Belarus Constitution).
- While this margin of appreciation is wide, it is certainly not all-embracing: the rules governing the electoral system “should not be such as to exclude some persons or groups of persons from participating in the political life of the country and, in particular, in the choice of the legislature, a right guaranteed by both the Convention and the Constitutions of all Contracting States” (ibid.). It is for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that the restrictions imposed do not thwart the free expression of the opinion of the people.
- In certain circumstances the two rights may come into conflict and it may be considered necessary, in the period preceding or during an election, to place certain restrictions, of a type which would not usually be acceptable, on freedom of expression, in order to secure the “free expression of the opinion of the people in the choice of the legislature”. The Court recognises that, in striking the balance between these two rights, the Contracting States have a margin of appreciation, as they do generally with regard to the organisation of their electoral systems (see Bowman, § 43, cited above).
- Laws addressing hate speech or protecting public order, public morals, minors, national security or official secrecy and data protection laws are not applied in a manner which inhibits public debate. Such laws impose restrictions of freedom of expression only in response to a pressing matter of public interest, are defined as narrowly as possible to meet the public interest and include proportionate sanctions.
- The Assembly recalls that political criticism and satire must be protected as an essential part of media freedom. Freedom of expression is applicable not only to information or ideas that are favourably received or perceived as inoffensive or with indifference, but also to those that offend, shock or disturb the State or any sector of the population, subject only to the conditions and restrictions provided for in the European Convention on Human Rights.
- Moreover, some types of hate speech which incite violence or hatred fall under Article 17 of the Convention (prohibition of abuse of rights) and are therefore not afforded protection because their aim is to destroy some of the rights and freedoms set forth in the Convention.
- 1. No one shall be subject to arbitrary interference with his or her freedom of expression. 2. Any restrictions on freedom of expression shall be provided by law, serve a legitimate interest and be necessary and in a democratic society.
- The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society.
- In addition to the principles adopted in earlier reports and in keeping with the Guiding Principles on Business and Human Rights, all companies in the ICT sector should: (…) (f) As part of an overall effort to address hate speech, develop tools that promote individual autonomy, security and free expression, and involve de-amplification, de-monetization, education, counter-speech, reporting and training as alternatives, when appropriate, to the banning of accounts and the removal of content.
- The fact is that many countries have legal limitations on free speech, which, if restrictively interpreted, may just be acceptable – but may generate abuses in countries with no liberal, democratic tradition. In theory, they are intended to prevent “abuses” of free speech by ensuring, for example, that candidates and public authorities are not vilified, and even protecting the constitutional system. In practice, however, they may lead to the censoring of any statements which are critical of government or call for constitutional change, although this is the very essence of democratic debate. For example, European standards are violated by an electoral law which prohibits insulting or defamatory references to officials or other candidates in campaign documents, makes it an offence to circulate libellous information on candidates, and makes candidates themselves liable for certain offences committed by their supporters. The insistence that materials intended for use in election campaigns must be submitted to electoral commissions, indicating the organisation which ordered and produced them, the number of copies and the date of publication, constitutes an unacceptable form of censorship, particularly if electoral commissions are required to take action against illegal or inaccurate publications. This is even more true if the rules prohibiting improper use of the media during electoral campaigns are rather vague.
- Governments may prevent the dissemination of election broadcasts only where such dissemination would be certain to lead to a disruption of public order or a violation of some other interest that the government is legitimately entitled to protect. A strong argument can be made that government-controlled media, especially where they control the only or main channels in a region, may not refuse to broadcast political debate save in limited circumstances.
- Any civil, criminal or administrative law measures that constitute an interference with freedom of expression must be provided by law, serve a legitimate aim as set out in international law and be necessary to achieve that aim.
- The legal framework should ensure that: There are no unreasonable restrictions on the right to freedom of expression and whatever restrictions there are be set out in the law.
- Laws that unduly restrict freedom of expression contrary to international and constitutional guarantees should be repealed. Where such laws are still in place during election campaigns, the authorities should apply the constitutional or international guarantees that protect freedom of expression.
- All of the major human rights treaties and other instruments either require by their terms or else have been interpreted to require that restrictions on freedom of expression meet a three-part test. First, any restriction must be provided by law. Second, in order to provide a legitimate basis for limitation, the restriction must serve one of the purposes stated in the treaty. The [ICCPR] permits restrictions only to protect 'the rights or reputations of other', 'national security', 'ordre public' (which in addition to public order includes the general welfare), 'public health or morals', 'propaganda for war' or 'incitement to discrimination, hostility or violence' on grounds of nationality, race or religion. Third, any restriction must be necessary 'in a democratic society'. To be necessary, a restriction does not have to be 'indispensable', but it must be more than merely 'reasonable' or 'desirable'. A 'pressing social need' must be demonstrated, the restriction must be proportionate to the legitimate aim pursued, and the reasons given to justify the restriction must relevant and sufficient. Where the information subject to restriction involves a matter of undisputed public concern" (which would include political debate during election campaign periods) the information may be restricted only if it appears 'absolutely certain' that its diffusion would have the adverse consequences legitimately feared by the state.
- Limitations on free expression violate international human rights law. Additionally, such provisions may violate free speech guarantees found in a country's constitution. These freedoms need consideration when reviewing provision that permit censorship of candidates, supporters or the media, and are contrary both to international standards and often to the domestic law of the country.
- Restrictions on Internet content, whether they apply to the dissemination or the receipt of information should only be imposed in strict conformity with the guarantee of freedom of expression...
- The holding of democratic elections and hence the very existence of democracy are impossible without respect for human rights, particularly the freedom of expression and of the press and the freedom of assembly and association for political purposes, including the creation of political parties. Respect for these freedoms is vital particularly during election campaigns. Restrictions on these fundamental rights must comply with the European Convention on Human Rights and, more generally, with the requirement that they have a basis in law, are in the general interest and respect the principle of proportionality.
- United Nations field presences should be aware that whether an expression of incitement to discrimination, hostility or violence is severe enough to amount to a criminal offence depends on whether it fulfils all of the criteria in the six-part threshold test set out in the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, which is a high threshold. The criteria are: (a) the context of the expression; (b) its speaker, (c) their intent; (d) its content and form; (e) its extent and magnitude; and (f) the likelihood, including imminence, of inciting actual action against the target group.
- Certain forms of hate speech may be prohibited under international law, even if they do not reach the above-mentioned threshold of incitement, in specific circumstances. Under article 19 of the International Covenant on Civil and Political Rights, certain types of biased expression may be restricted if such restrictions meet certain strict conditions. Such limitations need to: (a) be provided by law; (b) pursue a legitimate aim, such as the respect of the rights of others, including the right to equality and non-discrimination, or the protection of public order; and (c) be necessary in a democratic society and proportionate (the “three-part test”).
- Restrictions on freedom of expression which rely on notions such as “national security”, the “fight against terrorism”, “extremism” or “incitement to hatred” should be defined clearly and narrowly and be subject to judicial oversight, so as to limit the discretion of officials when applying those rules and to respect the standards set out in sub-paragraph (a), while inherently vague notions, such as “information security” and “cultural security”, should not be used as a basis for restricting freedom of expression.
- In keeping with these foundations, and with reference to the rules outlined above, States should at a minimum do the following in addressing online hate speech: (...) (b) Review existing laws or develop legislation on hate speech to meet the requirements of legality, necessity and proportionality, and legitimacy, and subject such rule-making to robust public participation.
- Democratic elections are not possible without respect for human rights, in particular freedom of expression and of the press, freedom of circulation inside the country, freedom of assembly and freedom of association for political purposes, including the creation of political parties. b. Restrictions of these freedoms must have a basis in law, be in the public interest and comply with the principle of proportionality.