This article was written by Ankita Soni, a student of City Academy Law College, Lucknow.
The right to freedom of Speech and expression is one of the most important rights to which everyone is entitled. It has achieved a far greater importance de facto in the present time for the growth of social media and global- sharing of information. This right in turn protects a very significant right, that of freedom of press. For the same reason the terms ‘freedom of speech and expression’ and ‘freedom of press’ have been used interchangeably here, acknowledging the fact that the ambit of ‘freedom of speech and expression’ is far wider than that of ‘freedom of press’. Freedom of information is inalienable in modern welfare states.
This right has been protected at great many places globally, i.e. both in international and regional conventions. Furthermore, its effect and enforcement is taking on greater pace among all the major peoples throughout the world. Nonetheless, this right is the most affected and inhibited right at many places. Several countries have come up with systems like safety legislations to inhibit this freedom of expression. In the light of these conditions proper enforcement and scope of this right needs to be delineated.
Right to Freedom of Speech and of Expression
The Right to Freedom of Speech and Expression is one of the most important right in a democracy as noted by the Inter-American Court of human rights, “[freedom of speech and expression] is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its opinions, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.”[i]
This right has been expressely defined in the UDHR and ICCPR as posited-
Article 19– Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[ii]
- 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.[iii]
This right to freedom of speech and expression has also been protected in many other international and regional instruments including-
- The International Convention on the Elimination of all forms of Racial Discrimination (Article 5(d)(viii)),
- The Convention on the Rights of the Child (Article 13),
- The European Convention on Human Rights (Article 10),
- The African Charter on Human and Peoples’ Rights (Article 9),
- The American Convention on Human Rights (Article 13),
- The Declaration on Human Rights Defenders47 (Article 6).
The right to freedom of opinion and expression encompasses three different aspects:
1) the right to hold opinions without interference;
2) the right of access to information; and
3) the right to impart information and ideas of all kinds.[iv]
The right to freedom of press explicitly includes the right to impart information and ideas of all kinds in every field. Furthermore, it impresses upon the right of access to information and the right to hold opinions without interference that is majorly the consequence of the information accessed.
Restrictions by States
The right to freedom of opinion and expression requires the states to comply with positive and negative obligations, including:
- a) to abstain from interfering with the enjoyment of the right;
- b) to protect the right by working to prevent, punish, investigate, and provide redress for harm caused by private persons or entities; and
- c) to take positive measures for the realization of the right.[v]
However, many States impose extraneous inhibitions on the Freedom of Speech and expression under the cover of ‘Security Legislation’. The term Security Legislation includes laws, decisions and other measures of a legally binding character that purport to protect public or State security or to protect against deeds such as acts of terrorism.[vi] These security legislations are contended by States as a reasonable restriction on the freedom of press.
However, the general practice shows otherwise as under the Special report of UN Human Rights Defenders, it was found, “the scope of security legislation exceeds the legitimate objective of strengthening security. Many security-related rules extend special powers to State authorities and often also limit judicial review and other guarantees of the protection of human rights. The breadth of some security-related legislation is such that, when abused, these instruments can themselves be used as tools of State terror.”[vii] These legislations are usually very vague and ambiguous so to restrict human rights activities by the method of action. Consequently, States hide their arbitrary and unjust actions under the veil of the rights of States derived from their sovereignty.
The Right to Freedom of Speech and Expression can be compulsorily enforced only if the concerned State is a member to the International Covenant on Civil and Political Rights, because the enforcement of fundamental human rights by States is explicitly protected under this instrument.[viii] Presently, there are many States who, though a member of the UN, are not party to many significant instruments for the protection of human rights, like the ICCPR itself. Therefore, many States violate fundamental human rights under the pretext that they are not obliged under international law to protect human rights.
It is contended that this argument by States should be refuted on the ground that even if the States are not party to International Conventions, but under International law every State is obliged to respect Human Rights under the Universal Declaration of Human Rights, because it has evidently assumed the role of customary international law[ix], and if not a customary law, it is accepted as an obligation on states as a general principle of international law[x]. Therefore, it can be inferred that the excessive legislations by States to inhibit the right to freedom of press can be both limited internationally by application of Art. 19 of the ICCPR, if the State is a member, and in any case, under Art. 19 of UDHR.
The contention of Security Legislation is important for the survival of State, because it is necessary to carry on survival of the existence of State. Nonetheless, the freedom of speech and expression unforfeitable, for if the State is just in its approach to protect its Sovereignty, there is no requirement for restricting the right of its people to have the necessary information, for being a properly informed society.
Though there are many other excuses invoked by the States to back from the proper enforcement of the freedom of press, but under the present international practice, every State is internationally obliged to respect this right of freedom of press, because no society is truly free if it does not have freedom of speech and expression.
[i] I/A Court H.R., Ivcher Bronstein Case. Judgment of February 6, 2001. Series C No. 74, para. 149. As cited in the Report on the Situation of Human Rights Defenders in the Americas, Inter-American Commission on Human Rights (IACHR), OEA/Ser.L/V/II.124, Doc. 5 rev.1, 7 March 2006, para. 79.
[ii] UN General Assembly, Universal Declaration of Human Rights[UDHR], 10 December 1948, 217 A (III), Art.19.
[iii] UN General Assembly, International Covenant on Civil and Political Rights[ICCPR], 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Art.19.
[iv]Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/14/23, para. 24, 20 April 2010.
[v] Id., para. 25.
[vi] UN General Assembly, Human rights defenders: Note by the Secretary-General 7, 18 September 2003, A/58/380.
[viii] Supra note iii, Art. 2.
[ix] Restatement (Third) Of The Foreign Relations Law of The United States, § 701, n.2 (1987).
[x] Id., n.1, At 154.