Freedom of expression

General Comment No. 34 on Article 19 of the ICCPR

11. Paragraph 2 requires States parties to guarantee the right to freedom of expression, including the right to seek, receive and impart information and ideas of all kinds regardless of frontiers. This right includes the expression and receipt of communications of every form of idea and opinion capable of transmission to others, subject to the provisions in article 19, paragraph 3, and article 20. It includes political discourse,13 commentary on one’s own14 and on public affairs,15 canvassing,16 discussion of human rights,17 journalism,18 cultural and artistic expression,19 teaching,20 and religious discourse. 21 It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, 22 although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20.

12. Paragraph 2 protects all forms of expression and the means of their dissemination. Such forms include spoken, written and sign language and such non-verbal expression as images and objects of art.23 Means of expression include books, newspapers,24 pamphlets,25 posters, banners, 26 dress and legal submissions. 27 They include all forms of audio-visual as well as electronic and internet-based modes of expression.

15. States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.

16. States parties should ensure that public broadcasting services operate in an independent manner. 32 In this regard, States parties should guarantee their independence and editorial freedom. They should provide funding in a manner that does not undermine their independence.

22. Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. 42Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.43

24. Restrictions must be provided by law. Law may include laws of parliamentary privilege 50 and laws of contempt of court.51 Since any restriction on freedom of expression constitutes a serious curtailment of human rights, it is not compatible with the Covenant for a restriction to be enshrined in traditional, religious or other such customary law.52

6. Laws restricting the rights enumerated in article 19, paragraph 2, including the laws, referred to in paragraph 24, must not only comply with the strict requirements of article 19, paragraph 3 of the Covenant but must also themselves be compatible with the provisions, aims and objectives of the Covenant. 55 Laws must not violate the non-discrimination provisions of the Covenant. Laws must not provide for penalties that are incompatible with the Covenant, such as corporal punishment. 56

27. It is for the State party to demonstrate the legal basis for any restrictions imposed on freedom of expression.57 If, with regard to a particular State party, the Committee has to consider whether a particular restriction is imposed by law, the State party should provide details of the law and of actions that fall within the scope of the law.58

5 See communication No. 488/1992, Toonen v. Australia, Views adopted on 30 March 1994.

56 General comment No. 20, Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI, sect. A.

57 See communication No. 1553/2007, Korneenko et al. v. Belarus, Views adopted on 31 October 2006. 58 See communication No. 132/1982, Jaona v. Madagascar, Views adopted on 1 April 1985. 59 See communication No. 927/2000, Svetik v. Belarus, Views adopted on 8 July 2004. 60 Ibid. 28. The first of the legitimate grounds for restriction listed in paragraph 3 is that of respect for the rights or reputations of others. The term “rights” includes human rights as recognized in the Covenant and more generally in international human rights law. 29. The second legitimate ground is that of protection of national security or of public order (ordre public), or of public health or morals.

32. The Committee observed in general comment No. 22, that “the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition ”. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination.

34. Restrictions must not be overbroad. The Committee observed in general comment No. 27 that “restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”. 72 The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination.

72 General comment No. 27, para. 14. See also Communications No. 1128/2002, Marques v. Angola;

No. 1157/2003, Coleman v. Australia.

35. When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.74

See communication No. 926/2000, Shin v. Republic of Korea.

43. Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government.

104 Concluding observations on the Syrian Arab Republic (CCPR/CO/84/SYR) 48. Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.115

115 Concluding observations on the United Kingdom of Great Britain and Northern Ireland-the Crown

Dependencies of Jersey, Guernsey and the Isle of Man (CCPR/C/79/Add.119). See also concluding

observations on Kuwait (CCPR/CO/69/KWT)

Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law

Concluding observations on the United Kingdom of Great Britain and Northern Ireland-the Crown Dependencies of Jersey, Guernsey and the Isle of Man (CCPR/C/79/Add.119). See also concluding observations on Kuwait (CCPR/CO/69/KWT)

49. Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. 116 The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events. Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.

So called “memory-laws”, see communication No., No. 550/93, Faurisson v. France. See also concluding observations on Hungary (CCPR/C/HUN/CO/5) paragraph 19

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or " fighting words " those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

— Chaplinsky v. New Hampshire, 1942

The court has continued to uphold the doctrine but also steadily narrowed the grounds on which fighting words are held to apply. In Street v. New York (1969),[2] the court overturned a statute prohibiting flag-burning and verbally abusing the flag, holding that mere offensiveness does not qualify as "fighting words". In similar manner, in Cohen v. California (1971), Cohen's wearing a jacket that said "fuck the draft" did not constitute uttering fighting words since there had been no "personally abusive epithets "; the Court held the phrase to be protected speech. In later decisions—Gooding v. Wilson (1972) and Lewis v. New Orleans (1974)—the Court invalidated convictions of individuals who cursed police officers, finding that the ordinances in question were unconstitutionally overbroad.

In R.A.V. v. City of St. Paul (1992), the Court overturned a statute prohibiting speech or symbolic expression that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" on the grounds that, even if the specific statute was limited to fighting words, it was unconstitutionally content-based and viewpoint-based because of the limitation to race-/religion-/sex-based fighting words. The Court, however, made it repeatedly clear that the City could have pursued "any number" of other avenues, and reaffirmed the notion that "fighting words" could be properly regulated by municipal or state governments.

In Snyder v. Phelps (2011), dissenting Justice Samuel Alito likened the protests of the Westboro Baptist Church members to fighting words and of a personal character, and thus not protected speech. The majority disagreed and stated that the protester's speech was not personal but public, and that local laws which can shield funeral attendees from protesters are adequate for protecting those in times of emotional distress.

https://books.google.com.ua/books?id=ZnaSbkkGIU0C&pg=PA250&lpg=PA250&dq=provocative+speech+case+law&source=bl&ots=wXH5N-csXb&sig=XBP26C5zw6c9V9nT_XOcDWnHdjU&hl=uk&sa=X&ei=ff2JVND-Jeb4ywODoIKoBQ&ved=0CFUQ6AEwBw#v=onepage&q=provocative%20speech%20case%20law&f=false

SUPREME COURT OF THE UNITED STATES ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, SR., et al.

That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74–75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,” Connick, supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego, supra, at 83–84. See Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492–494 (1975); Time, Inc. v. Hill, 385 U. S. 374 – 388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U. S. 378, 387 (1987). Deciding whether speech is of public or private concern requires us to examine the “ ‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ ” Dun & Bradstreet, supra, at 761 (quoting Connick, supra, at 147–148). As in other First Amendment cases, the court is obligated “to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984) (quoting New York Times, supra, at 284–286). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said. Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler, 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of … ‘vehement, caustic, and sometimes unpleasan[t]’ ” expression. Bose Corp., 466 U. S., at 510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its con-tribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

Robert Faurisson v. France, Communication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993(1996).

9.4 Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.

In Constitutional Rights Project and Others v Nigeria, the ACtHPR ruled that this right

and Article 9 of the ACHPR had been violated.58 Nigeria’s military government actively stopped

several newspapers, The Guardian, Punch and The Concord, from publishing and distributing.59

The militia occupied the premises even after being court ordered to vacate.60 While the situation

was pending in the courts, thirteen newspapers and magazines failed to be produced for a period

of six months.61 Restricting the press and the actions taken by the military government “poses an

immediate risk that journalists and newspapers not yet affected by any of the decrees will subject

themselves to self-censorship in order to be allowed to carry on their work”62 which would

inhibit the public’s ability to receive information and its right to know.6

These actions inhibited the public from disseminating opinions and receiving information.

According to the Johannesburg Principles, the freedom of expression or information cannot be restricted unless “the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest.” Laws concerning these issues must be narrowly construed and clear.71 They must “provide for adequate safeguards against abuse.”72 The government must be able to “establish that the expression poses a serious threat to national security” and the restriction is the “least restrictive means” available.73 “Once information has been made generally available, by whatever means, whether or not lawful, any justification for trying to stop further publication will be overridden by the public’s right to know.”7

6 “Note on Kazakhstan’s Regulations for the Allocation of Domain Space” (October 2005) Article 19, 2 <http://www.osce.org/fom/16759> accessed 10 November 2011 Providing a government agency with the power to decide who can register “introduces the potential for political interference ” as well as the possibility that “domain name registration may be refused or suspended on a number of vague or seemingly illegitimate grounds.”77 Kazakhstan is a party to several agreements which guarantee the freedom of expression, including Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and its own constitution.78 “In most democratic countries, domain name registration is a relatively straightforward process, unburdened by excessive regulation or bureaucracy ” and “tends to be run by non-government entities.”79 The restrictions imposed by Kazakhstan are clearly not aligned with these democratic ideals or international law.

Frank LaRue, Dunja Mijatovic, Catalina Botero Marino, and Faith Pansy Tlakula, “Joint Declaration on Freedom of Expression and the Internet” (1 June 2011) <http://www.osce.org/ fom/78309> accessed 2 November 2011) para 6(d).

“Measures which limit access to the Internet, such as imposing registration or other requirements on service providers” violate the freedom of expression.82 These limitations serve as prior restraints and are unlawful.83 Derogation of the freedom of expression is not permitted, “regardless of the subject of the information or opinions or the political situation of a country.”

Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999) [38] Governmental involvement poses a specific risk that speech will be chilled for fear of repercussions.85 The risk of governmentally imposed implications can serve to encourage individuals not to speak.86 It also effects how persons disseminating ideas and opinions in all forms of media choose to act and can cause them to self-censor.87 In this instance, the government has not proclaimed a state of emergency so the restraint is not necessary based on the current political situation in Bemidia.

Дискусія щодо історичної події – чуми

Furthermore, it has already had occasion to note that “it is an integral part of freedom of expression to seek historical truth”, and that “it is not its role to arbitrate” the underlying historical issues (see Chauvy and Others v. France – foreseeability of the law, no. 64915/01, § 69, ECHR 2004-VI)

In so doing he had made a contribution, which by definition was open to discussion

69. The Court considers that it is an integral part of freedom of expression to seek historical truth and it is not the Court’s role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation. As such, and regardless of the doubts one might have as to the probative value or otherwise of the document known as “Barbie’s written submissions” or the “Barbie testament”, the issue does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision is removed from the protection of Article 10 by Article 17 of the Convention (see Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998 VII, pp. 2885-86, § 51, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX; as regards Jean Moulin’s arrest at Caluire, see paragraph 10 above).

63. 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”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

64. 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 legislation and the decisions applying it, even those given by an independent court. 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.

67. The Court has on many occasions stressed the essential role the press plays in a democratic society. It has, inter alia, stated that although the press must not overstep certain bounds, in particular in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002-V). The national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” (see, among other authorities, the Bladet Tromsø and Stensaas, cited above, § 59).

69. The Court considers that it is an integral part of freedom of expression to seek historical truth and it is not the Court’s role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation. As such, and regardless of the doubts one might have as to the probative value or otherwise of the document known as “Barbie’s written submissions” or the “Barbie testament”, the issue does not belong to the category of clearly established historical facts – such as the Holocaust – whose negation or revision is removed from the protection of Article 10 by Article 17 of the Convention (see Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998‑VII, pp. 2885-86, § 51, and Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX; as regards Jean Moulin’s arrest at Caluire, see paragraph 10 above). However, the Court must balance the public interest in being informed of the circumstances in which Jean Moulin, the main leader of the internal Resistance in France, was arrested by the Nazis on 21 June 1943, and the need to protect the reputation of Mr and Mrs Aubrac, who were themselves important members of the Resistance. More than half a century after the events, there was a risk that there their honour and reputation would be seriously tarnished by a book that raised the possibility, albeit by way of innuendo, that they had betrayed Jean Moulin and had thereby been responsible for his arrest, suffering and death.

Hard-core liberals could not disagree more. Academics like Randall Hansen and Brendan O’Leary and journalists like Christopher Hitchens and Philip Gourevitch argue that there is no right in liberal democracies not to be offended (Modood et al. 2006). 1 They also believe that anyone who insists upon this right is antiliberal and shows a fundamental misunderstanding of the importance of free speech. There is a variation on this position that encompasses scholars like Robert Post and Steven Heyman who are not hard-core Millian liberals, but who base their stance on the assumption that these cartoons were legitimate criticisms of religious doctrine rather than targeted attempts to stir up hatred against Muslims as an ethnoracial group (Heyman 2008: 181–182; Post 2007).

In the Jyllands-Posten case, however, these conditions do not apply.

There was no disassociation from the most contentious cartoons.

The point of the project was not to serve as a watchdog exposing

anti-Muslim prejudice as a social problem. In fact, the purpose of the

project was precisely to insult minorities, and by appealing to the cartoonists

union, it was eminently foreseeable that some of the images

would fulfill this goal. The Jyllands-Posten editors are undoubtedly

not hard-core racists. But the reasons the Jersild conviction was

overturned would not protect them in this case. There were thus no

external European constraints on prosecuting the Jyllands-Posten for

publishing these cartoons. Moreover, even if Danish authorities were

skittish about pursuing the newspaper, the fact that the individual

racists were convicted in the Jersild case suggests that it may have

been possible to prosecute the individual cartoonists for hate speech

separately from the editors. Fr ee Speech or H at e Speech? The Danish Cartoon Controversy in the Europe a n L eg a l Con t e x t Erik Bleich

Judicial investigation of Jyllands-Posten (October 2005 – January 2006)[edit]

On 27 October 2005, representatives of the Muslim organisations which had complained about the cartoons in early October filed a complaint with the Danish police claiming that Jyllands-Posten had committed an offence under section 140 and 266b of the Danish Criminal Code, precipitating an investigation by the public prosecutor.[29]

Section 140[30] of the criminal code, known as the blasphemy law, prohibits disturbing public order by publicly ridiculing or insulting the dogmas of worship of any lawfully existing religious community in Denmark. Only one case, a 1938 case involving an anti-Semitic group, has ever resulted in a sentence. The most recent case was in 1971 when a programme director of Danmarks Radio was accused in a case involving a song about the Christian god,[31] but was found not guilty.[32]

Section 266b[33] criminalises insult, threat or degradation of natural persons, by publicly and with malice attacking their race, colour of skin, national or ethnic roots, faith or sexual orientation.

On 6 January 2006, the Regional Public Prosecutor in Viborg discontinued the investigation as he found no basis for concluding that the cartoons constituted a criminal offence because the publication concerned a subject of public interest and Danish case law extends editorial freedom to journalists regarding subjects of public interest. He stated that in assessing what constitutes an offence, the right to freedom of speech must be taken into consideration, and said that freedom of speech must be exercised with the necessary respect for other human rights, including the right to protection against discrimination, insult and degradation.[29] In a new hearing resulting from a complaint about the original decision, the Director of Public Prosecutors in Denmark agreed with the previous ruling

Mikich, Sonia (6 February 2006). "What next, bearded one? [de:Was nun, ferner Bärtiger?]". Die Tageszeitung. Translation on Signandsight.com by Naomi Buck. Archived from the original on 7 February 2006. Retrieved 15 November 2012.

"I hereby refuse to feel badly for the chronically insulted. I refuse to argue politely why freedom of expression, reason and humour should be respected". She said that those things are part of a healthy society and that deeply held feelings or beliefs should not be exempt from commentary, and that those offended had the option of ignoring them

http://www.theguardian.com/media/2006/oct/27/pressandpublishing.race

It is ARTICLE 19’s opinion, that the role of the courts is crucial in the implementation of Article 20 of the ICCPR, whether or not there is express legislation or jurisprudence on incitement. We emphasise in this regard the obligations flowing from the ICCPR which apply not only to the executive and legislative arms of the state, but also to the judiciary as is indicated by international authorities and jurisprudence. For present purposes it is important to also highlight that whether there has been incitement, whether damage has been suffered and, if so, the extent of such damage is for the courts to determine. The Venice Commission has emphasised that courts are well placed to enforce rules of law in relation to these issues and to take account of the facts of each situation.62 Awards of damages should be be proportional and carefully and strictly justified and motivated so they do not have a collateral chilling effect on freedom of expression. ARTICLE 19’s Camden Principles offer a range of proposals to ensure the right to equality is fulfilled and freedom of expression respected. In addition, as highlighted in the table below, we believe that civil and/or administrative course of actions may be considered in cases which do not meet the threshold of severity requested by article 20, provided they remain within the scope of article 19 (three part test) and proportionate.

15. A specific act of expression involves both dimensions simultaneously. Likewise, a limitation to the right to freedom of expression affects both dimensions at the same time.19 Thus, for example, in the case of Palamara Iribarne v. Chile, the Inter-American Court held that when Chilean military criminal justice authorities prevented (by means of prohibitions and physical seizures) the petitioner from publishing a book that he had already written and that was in the process of being printed and distributed, both dimensions of freedom of expression were violated: Mr. Palamara’s right to exercise his freedom by writing and publishing the book was adversely affected, and the right of the Chilean public to receive the information, ideas and opinions set forth in that writing was also infringed. 16. The two dimensions of freedom of expression are of equal importance; they are inter-dependent and must be guaranteed simultaneously, in full, in order for the rightenshrined in the Inter-American instruments to be completely effective.20

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