Most expression is completely harmless and protected under the right to freedom of expression from interference by the state.
However, ‘seeking, receiving and imparting information or ideas’ includes expression which few societies could tolerate, such as incitement to murder or the sale of pornography to children. As a result, freedom of expression is not absolute and can be limited when it conflicts with other rights.
International law declares freedom of expression to be the rule. Limitations are the exception, permitted only to protect:
- the rights or reputations of others
- national security
- public order
- public health
Limitation is legitimate if it falls within the very narrow conditions defined in the three-part test in Article 19(3) of the ICCPR:
1. ‘…PROVIDED BY LAW...’
The right to freedom of expression cannot be limited at the whim of a public official. They must be applying a law or regulation that is formally recognised by those entrusted with law making.
The law or regulation must meet standards of clarity and precision so that people can foresee the consequences of their actions. Vaguely worded edicts, whose scope is unclear, will not meet this standard and are therefore not legitimate. For example, vague prohibitions on ‘sowing discord in society’ or ‘painting a false image of the State’ would fail the test.
- It is only fair that people have a reasonable opportunity to know what is prohibited, so that they can act accordingly
- A situation where officials can make rules on a whim is undemocratic. Decisions limiting human rights must be made by bodies representing the will of people
- Vague laws will be abused. They often give officials discretionary powers that leave too much room for arbitrary decision-making
- Vague laws have a ‘chilling effect’ and inhibit discussion on matters of public concern. They create a situation of uncertainty about what is permitted, resulting in people steering far clear of any controversial topic for fear that it may be illegal, even if it is not.
2. ‘…LEGITIMATE AIM…’
There must be a legitimate aim to limit the right to freedom of expression. The list of legitimate aims is not open-ended. They are provided for in Article 19(3) of the ICCPR: ‘…respect for the rights and reputations of others, and protection of national security, public order (ordre public), public health or morals’. They are exclusive and cannot be added to.
- Not all the motives underlying governments’ decisions to limit freedom of expression are compatible with democratic government. For example, a desire to shield a government from criticism can never justify limitations on free speech
- The aim must be legitimate in purpose and effect. It is not enough for a provision to have an incidental effect on one of the legitimate aims. If the provision was created for another reason, it will not pass this part of the test.
Any limitation of the right to freedom of expression must be truly necessary. Even if a limitation is in accordance with a clear law and serves a legitimate aim, it will only pass the test if it is truly necessary for the protection of that legitimate aim. If a limitation is not needed, why impose it?
In the great majority of cases where international courts have ruled national laws to be impermissible limitations on the right to freedom of expression, it was because they were not deemed to be ‘necessary’.
- A government must be acting in response to a pressing social need, not merely out of convenience. On a scale between ‘useful’ and ‘indispensable’, ‘necessary’ should be close to ‘indispensable’
- A government should always use a less intrusive measure if it exists and would accomplish the same objective. For example, shutting down a newspaper for defamation is excessive; a retraction (or perhaps a combination of a retraction and a warning or a modest fine) would offer the victim of defamation adequate protection
- The measure must impair free expression as little as possible. It should not restrict in a broad or untargeted way, as that could interfere with legitimate expression. For example, it is too broad to ban all discussion about a country’s armed forces in order to protect national security
- The impact of the measure must be proportionate and the harm that it causes to free expression must not outweigh its benefits. For example, a limitation that provides only partial protection to someone’s reputation but seriously undermines free expression is disproportionate
- A court must take into account all of the circumstances at that time before deciding to limit freedom of expression. For example, it could be legitimate to limit freedom of expression for national security reasons during a conflict but not during peacetime
- The European Convention on Human Rights (ECHR) narrows the third test by requiring limitations to be ‘necessary in a democratic society’. This wording is preferable as it clarifies that the purpose of the limitation must never be to shield governments from either criticism or peaceful opposition.
What is a ‘limitation’ or ‘restriction’?
International courts have generally judged that any action by a public body that has an actual effect on people’s freedom of expression constitutes a ‘restriction’ or ‘limitation’.
- The nature of the action is irrelevant. It could be anything from a law to an internal disciplinary measure
- The nature of the public body is irrelevant. It could be legislative, executive or judicial, or a publicly owned enterprise
- The extent of the action’s impact is irrelevant. Any discernible effect on the ability of one or more people to express themselves freely is a restriction.
The ECHR again narrows the definition of a limitation, requiring the three-part test to apply to any “formalities, conditions, restrictions or penalties” under Article 10(2).