4.2.1 Interference with the right to freedom of opinion and expression [ICCPR art 19] Condensed entry: Everyone has the absolute right to hold opinions without interference; this right may not be subject to restriction even during times of emergency. Everyone also has the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds, orally, in writing or in print, in the form of art or through any other media of choice, including internet. Forms of interference include civil, criminal or administrative penalties, arrest, harassment, intimidation, stigmatization, censorship, banning of publications, confiscation, fees and licensing requirements for journalists, or for the print or broadcast media. Any restriction of the right to freedom of expression must be: (1) provided by law; (2) for the protection of a legitimate purpose such as for respect of the rights or reputation of others, or for the protection of national security, public order or public health or morals; and (3) necessary and proportional to the aim which the restriction serves to protect. Political expression is granted higher protection than expression about private individuals. Comprehensive entry: Article 19(1) ICCPR provides: ‘Everyone shall have the right to hold opinions without interference.’ Article 19(2) provides: ‘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 freedom of opinion and expression is also protected by regional human rights instruments.[1] The right to hold opinions enjoys absolute protection against limitation and derogation.[2] Hence, political or any other indoctrination with a view to ‘ideological conversion’ through force or inducement of preferential treatment may not be justified as it interferes with the right to hold opinions.[3] Freedom of expression applies to every form of expression, including via print, speech, broadcasting, the internet and art,[4] encompassing all ideas and opinions capable of transmission to others. The content of expression may relate to information and ideas of all kinds including political,[5] commercial,[6] professional, religious and other forms of expression, including offensive expressions, and in a language of one’s choice.[7] Forms of interference with the right to freedom of expression include arrest or sentence,[8]criminal conviction or administrative penalties,[9] harassment, intimidation, stigmatization, censorship, banning of publications,[10] confiscation, fees and licensing requirements.[11] (See also *arbitrary arrest or detention*, *censorship*, *prohibiting media from operating*, *confiscation of media property*).The state has the duty both to refrain from unjustifiably interfering with the right to freedom of expression as well as to protect individuals from such interferences by others.[12] The state is also under a positive obligation to create an environment in which freedom of expression will thrive, for example, by putting in place a system for licensing broadcasters that promotes pluralism or by adopting access to information (right to information) legislation.[13] (See *access to information*). Not all interference constitutes a violation of the freedom of expression. However, any restriction of the right to freedom of expression must be: (1) provided by law; (2) for the protection of a legitimate purpose such as for respect of the rights or reputation of others, or for the protection of national security, public order or public health or morals; and (3) necessary and proportional to the aim which the restriction serves to protect.[14] Limitations must be narrowly construed. The restriction must be provided for in law.[15] The HRC has held that ‘the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect.’[16] The justifiability of restrictions on freedom of expression should be analyzed on a case by case basis. The protection of the rights of others allows for example the prohibition of statements that would constitute incitement to violence, hatred or discrimination. For instance, the re-assignment of a teacher to a non-teaching position for anti-Semitic expressions, even if outside the work place, constituted justifiable limitation on freedom of expression.[17](See *Incitement to violence, hatred, or discrimination*). With regard to protection of the reputation of others, political expression, expression about public office holders and other expression of public interest, are granted greater protection than expression about private individuals and purely private matters of public officials.[18] (See *protection of reputation*).
National security may not be abused by invoking treason, sedition or official secrets laws ‘to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.’[21]
Statements or distribution of leaflets at an unauthorized meeting do not necessarily encroach on public order.[22] In two cases against Belarus, the HRC held that to fine persons who had publicly called for the boycott of elections without any form of intimidation violated their freedom of expression as the fines served no legitimate purpose.[23]
[1] ACHPR, art 9; IACHR art 13; ECHR art 10. See also African Commission Declaration on Principles of Freedom of Expression in Africa (2002) and the Inter-American Declaration of Principles on Freedom of Expression (2000). [2] HRC General Comment 10 para 1. See also Draft General Comment 34 para 9. [3] Kang v Repulic of Korea, communication 878/1999 (HRC, 2003) para 7.2. [4] Draft General Comment 34 para 12. [5]Law Office of Ghazi Suleiman v Sudan (II) (2003) AHRLR 144 (ACHPR 2003) para 53. [6] Ballantyne et al v Canadacommunications 359& 385/1989 (HRC, 1993) para 11.3. [7] Ballantyne et al v Canada communications 359 & 385/1989 (HRC 1993)para 11.4. [8] See eg Coleman v Australia communication 1157/2003 para 7.2; Weinberger Weisz v Uruguay communication 28/1978 (HRC 1980) para 15. [9] Kivenmaa v Finland communication 412/1990 (HRC 1994) para 9.3; Svetik v Belarus communication 927/2000 (HRC 2004) paras 2.3, 7.3. [10] Mukong v Cameroon communication 458/1991 (1994) paras 2.1, 9.7. [11] Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, E/CN.4/1995/32,para 40. [12] HRC General Comment 34 para 8, Draft General Comment 34 para 6. [13] HRC, Draft General Comment 34, para 20, [14] There must be a pressing social need and not merely ‘useful’, ‘reasonable’, or ‘desirable’ restrictions – see Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 (IACtHR 1985) para 46), Observer and Guardian v the United Kingdom,application no 13585/88 (ECtHR 1991) para 59(c). [15] Kivenmaa v Finland communication 412/1990 (HRC 1994) para 9.3. In this case, the HRC found a violation as there was no law allowing the restriction of the right to freedom of expression. [16] Marques de Morais v Angola communication 1128/2002 (2005) para 6.8. [17] Ross v Canada communication 736/1997 (HRC 2000) para 11.6. [18] Marques de Morais v Angola communication 1128/2002 (HRC 2005), Lingens v Austria,application no 9815/82 (ECtHR 1986) para 42. The institution of proceedings for defamation does not however in itself violate the freedom of expression, see Paraga v Croatia, communication 727/1996 (HRC 2001) para 9.6. [19] HRC General Comment 22 para 8. [20]Wingrove v United Kingdom application 17419/90 (ECtHR 1996) para 58. [21] HRC Draft General Commetn 34 para 31. [22] Velichikin v Belarus communication 1022/2001 (HRC, 2005) para 7.3. [23] Svetik v Belarus communication 927/2000 (HRC, 2004) para 7.3; Shchetko et al v Belarus communication 1009/2001 (HRC, 2006) para 7.5.
Condensed entry:
Everyone has the absolute right to hold opinions without interference; this right may not be subject to restriction even during times of emergency. Everyone also has the right to freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds, orally, in writing or in print, in the form of art or through any other media of choice, including internet. Forms of interference include civil, criminal or administrative penalties, arrest, harassment, intimidation, stigmatization, censorship, banning of publications, confiscation, fees and licensing requirements for journalists, or for the print or broadcast media.
Any restriction of the right to freedom of expression must be: (1) provided by law; (2) for the protection of a legitimate purpose such as for respect of the rights or reputation of others, or for the protection of national security, public order or public health or morals; and (3) necessary and proportional to the aim which the restriction serves to protect. Political expression is granted higher protection than expression about private individuals.
Comprehensive entry:
Article 19(1) ICCPR provides: ‘Everyone shall have the right to hold opinions without interference.’ Article 19(2) provides: ‘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 freedom of opinion and expression is also protected by regional human rights instruments.[1]
The right to hold opinions enjoys absolute protection against limitation and derogation.[2] Hence, political or any other indoctrination with a view to ‘ideological conversion’ through force or inducement of preferential treatment may not be justified as it interferes with the right to hold opinions.[3]
Freedom of expression applies to every form of expression, including via print, speech, broadcasting, the internet and art,[4] encompassing all ideas and opinions capable of transmission to others. The content of expression may relate to information and ideas of all kinds including political,[5] commercial,[6] professional, religious and other forms of expression, including offensive expressions, and in a language of one’s choice.[7]
Forms of interference with the right to freedom of expression include arrest or sentence,[8]criminal conviction or administrative penalties,[9] harassment, intimidation, stigmatization, censorship, banning of publications,[10] confiscation, fees and licensing requirements.[11] (See also *arbitrary arrest or detention*, *censorship*, *prohibiting media from operating*, *confiscation of media property*).The state has the duty both to refrain from unjustifiably interfering with the right to freedom of expression as well as to protect individuals from such interferences by others.[12] The state is also under a positive obligation to create an environment in which freedom of expression will thrive, for example, by putting in place a system for licensing broadcasters that promotes pluralism or by adopting access to information (right to information) legislation.[13] (See *access to information*).
Not all interference constitutes a violation of the freedom of expression. However, any restriction of the right to freedom of expression must be: (1) provided by law; (2) for the protection of a legitimate purpose such as for respect of the rights or reputation of others, or for the protection of national security, public order or public health or morals; and (3) necessary and proportional to the aim which the restriction serves to protect.[14] Limitations must be narrowly construed.
The restriction must be provided for in law.[15] The HRC has held that ‘the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect.’[16] The justifiability of restrictions on freedom of expression should be analyzed on a case by case basis.
The protection of the rights of others allows for example the prohibition of statements that would constitute incitement to violence, hatred or discrimination. For instance, the re-assignment of a teacher to a non-teaching position for anti-Semitic expressions, even if outside the work place, constituted justifiable limitation on freedom of expression.[17] (See *Incitement to violence, hatred, or discrimination*).
With regard to protection of the reputation of others, political expression, expression about public office holders and other expression of public interest, are granted greater protection than expression about private individuals and purely private matters of public officials.[18] (See *protection of reputation*).
National security may not be abused by invoking treason, sedition or official secrets laws ‘to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.’[21]
Statements or distribution of leaflets at an unauthorized meeting do not necessarily encroach on public order.[22] In two cases against Belarus, the HRC held that to fine persons who had publicly called for the boycott of elections without any form of intimidation violated their freedom of expression as the fines served no legitimate purpose.[23]
[1] ACHPR, art 9; IACHR art 13; ECHR art 10. See also African Commission Declaration on Principles of Freedom of Expression in Africa (2002) and the Inter-American Declaration of Principles on Freedom of Expression (2000).
[2] HRC General Comment 10 para 1. See also Draft General Comment 34 para 9.
[3] Kang v Repulic of Korea, communication 878/1999 (HRC, 2003) para 7.2.
[4] Draft General Comment 34 para 12.
[5] Law Office of Ghazi Suleiman v Sudan (II) (2003) AHRLR 144 (ACHPR 2003) para 53.
[6] Ballantyne et al v Canadacommunications 359& 385/1989 (HRC, 1993) para 11.3.
[7] Ballantyne et al v Canada communications 359 & 385/1989 (HRC 1993)para 11.4.
[8] See eg Coleman v Australia communication 1157/2003 para 7.2; Weinberger Weisz v Uruguay communication 28/1978 (HRC 1980) para 15.
[9] Kivenmaa v Finland communication 412/1990 (HRC 1994) para 9.3; Svetik v Belarus communication 927/2000 (HRC 2004) paras 2.3, 7.3.
[10] Mukong v Cameroon communication 458/1991 (1994) paras 2.1, 9.7.
[11] Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, E/CN.4/1995/32,para 40.
[12] HRC General Comment 34 para 8, Draft General Comment 34 para 6.
[13] HRC, Draft General Comment 34, para 20,
[14] There must be a pressing social need and not merely ‘useful’, ‘reasonable’, or ‘desirable’ restrictions – see Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 (IACtHR 1985) para 46), Observer and Guardian v the United Kingdom,application no 13585/88 (ECtHR 1991) para 59(c).
[15] Kivenmaa v Finland communication 412/1990 (HRC 1994) para 9.3. In this case, the HRC found a violation as there was no law allowing the restriction of the right to freedom of expression.
[16] Marques de Morais v Angola communication 1128/2002 (2005) para 6.8.
[17] Ross v Canada communication 736/1997 (HRC 2000) para 11.6.
[18] Marques de Morais v Angola communication 1128/2002 (HRC 2005), Lingens v Austria,application no 9815/82 (ECtHR 1986) para 42. The institution of proceedings for defamation does not however in itself violate the freedom of expression, see Paraga v Croatia, communication 727/1996 (HRC 2001) para 9.6.
[19] HRC General Comment 22 para 8.
[20] Wingrove v United Kingdom application 17419/90 (ECtHR 1996) para 58.
[21] HRC Draft General Commetn 34 para 31.
[22] Velichikin v Belarus communication 1022/2001 (HRC, 2005) para 7.3.
[23] Svetik v Belarus communication 927/2000 (HRC, 2004) para 7.3; Shchetko et al v Belarus communication 1009/2001 (HRC, 2006) para 7.5.