International law and freedom of expression online
The right to freedom of expression is a fundamental human right enshrined in all major international and regional human rights law instruments, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the Arab Charter on Human Rights (Arab Charter), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples’ Rights (ACHPR).
Box 1: International Covenant on Civil and Political Rights – Article 19
- 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:
- For respect of the rights or reputations of others;
- For the protection of national security or of public order (ordre public), or of public health or morals.
With the progression of communications technology – in particular the very rapid increase in the importance of social media as a medium for seeking, receiving and imparting information – the critical need to interpret human rights norms as they might apply in the contemporary interconnected world was recognized. Protecting online users from violations of their internet-related human rights became all the more imperative as governments in certain countries enacted legislation that allowed for monitoring the internet not as a tool to fight cybercrime but instead as a mechanism against dissidence, including critical and unwanted speech online.40
In this context, in July 2012 the UN Human Rights Council41 adopted Resolution 20/8, on the promotion, protection and enjoyment of human rights on the internet, affirming:
The same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.42
This ground-breaking resolution – the first to recognize the importance of a global and open internet as a ‘driving force in accelerating progress towards development in its various forms’,43 and as ‘an important tool for development and for exercising human rights’.44 Those principles were reaffirmed in several resolutions, including UN General Assembly Resolution 26/13 of June 201445 and Resolution 32/13 of July 2016.46
The Human Rights Council subsequently adopted several other resolutions to reaffirm previously guaranteed rights in an internet context. These include Resolutions 21/1647 and 24/5,48 on the rights to freedom of peaceful assembly and association; Resolution 22/6,49 on protecting human rights defenders; and Resolution 23/2,50 on the role of freedom of opinion and expression in women’s empowerment.
It should be noted, however, that – as is similarly the case with regard to ‘offline’ speech – freedom of expression online is not absolute. In accordance with Article 19 of the ICCPR, freedom of speech can be subject to certain restrictions as provided for by law and as necessary to protect the rights and reputations of others, national security, public order and public health and morals.51 In practice, this means that while freedom of expression is the rule, whether offline or online, some restrictions are permissible, albeit they are considered as the exception to this rule.
In 2011 the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion emphasized the importance of distinguishing between three types of expression:
(a) expression that constitutes an offence under international law and can be prosecuted criminally; (b) expression that is not criminally punishable but may justify a restriction and a civil suit; and (c) expression that does not give rise to criminal or civil sanctions, but still raises concerns in terms of tolerance, civility and respect for others.52
Under the first type, several ‘exceptional’ forms of expression are prohibited. These are content related to: child pornography; direct and public incitement to commit genocide; advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence; and incitement to terrorism.53
According to the Special Rapporteur, any other form of expression – i.e. that falls outside these prohibited four categories – should not be criminalized, as this may be counter-effective and the threat of harsh sanctions may create a significant ‘chilling effect’ on the right to freedom of expression.54 In relation to defamation offences, for example, a number of human rights organizations and experts have called for the abolition of all criminal defamation laws, and for these to be replaced, where necessary, by appropriate civil defamation laws.55
Exceptionally, some limitations on the right to freedom of expression may be permissible under international human rights law; however, any such restrictions must pass the three-part, cumulative test of legality, legitimacy and proportionality:56
For restrictions to be permissible, they need first to be prescribed by an unambiguous law – i.e. the laws limiting specific kinds of speech must be very precise and clear so that the citizens are able to understand these laws and regulate their behaviour accordingly. Vaguely worded laws or provisions would not meet this standard and would therefore be considered illegitimate.
Second, limitations should be enacted for the pursuance of a legitimate purpose as per Article 19(3) of the ICCPR, namely for the respect of the rights or reputations of others; and/or for the protection of national security or of public order, or of public health or morals.
Third, any restrictions must respect the principles of necessity and proportionality – i.e. they have to be necessary and proportionate to the interest protected.
40 See for example Human Rights Watch (HRW) (2012), ‘Philippines: New ‘Cybercrime’ Law Will Harm Free Speech’, 28 September 2012, https://www.hrw.org/news/2012/09/28/philippines-new-cybercrime-law-will-harm-free-speech.
41 The Human Rights Council is an intergovernmental body within the UN system, made up of 47 states responsible for the promotion and protection of all human rights around the globe, created on 15 March 2006 by UNGA A/RES/60/251.
42 UN General Assembly (UNGA) (2012), The promotion, protection and enjoyment of human rights on the Internet, 16 July 2012 A/HRC/RES/20/8 http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/20/8.
43 Ibid.
44 Ibid.
45 UNGA (2014), The promotion, protection and enjoyment of human rights on the internet, 20 June 2014, A/HRC/26/L.24 https://documents-dds-ny.un.org/doc/UNDOC/LTD/G14/059/67/PDF/G1405967.pdf?OpenElement.
46 UNGA (2016), The promotion, protection and enjoyment of human rights on the internet, 1 July 2016, A/HRC/RES/32/13, http://www.refworld.org/
docid/57e916464.html.
47 UNGA (2012), The right to freedom of peaceful assembly and of association, 11 October 2012, A/HRC/RES/21/16, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/21/16.
48 UNGA (2013), The right to freedom of peaceful assembly and of association, 8 October 2013, A/HRC/RES/24/5, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/24/5.
49 UNGA (2013), Protecting Human Rights defenders, 12 April 2013, A/HRC/RES/22/6 http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/22/6.
50 UNGA (2013), The role of freedom of opinion and expression in women’s empowerment, 24 June 2013, A/HRC/RES/23/2 http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/23/2.
51 UNGA (1966), International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, Article (19), http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf.
52 UNGA (2011), Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 10 August 2011, A/66/290, http://ap.ohchr.org/documents/dpage_e.aspx?si=A/66/290.
53 Ibid.
54 Ibid.
55 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 (2002), ‘International Mechanisms for Promoting Freedom of Expression’, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=87&.
56 UNGA, Promotion and protection of the right to freedom of opinion and expression; The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para. 49 (European Court of Human Rights); Lingens v. Austria, 8 July 1986, Application No. 9815/82, paras. 39–40 (European Court of Human Rights).