By Dr Shaista Shameem
Adapted from Article 19 as applicable to Fiji in view of recent statements and speeches made about limits to freedom of expression in the Fiji context.
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, promotion of racial discrimination, or sale of pornography to children. As a result, freedom of expression is not absolute and can be limited when it conflicts with other individual or group rights.
BUT, international law declares freedom of expression to be the rule. Limitations are the exception, permitted and justified in a free and democratic society ONLY to protect:
the rights or reputations of others
established and universal (not necessarily religious) morals, for example ban on cruelty to children, sexual slavery, labour trafficking, expression of hate speech.
Limitation is legitimate if it is stated in a domestic law BUT, this law must fall 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, particularly in an authoritarian context. They must be applying a law or regulation that is formally recognized by those entrusted with law making, i.e, parliament.
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 public institutions of the state (i.e. who are paid by the public purse) 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.
Courts have broadened public criticism of state institutions, even of itself, in non-democratic contexts- the test is whether it is ‘fair comment’ in all the circumstances of the case. Of course courts also have to be cautious that they would survive in that context- nevertheless, the broader picture is survival of access to justice and not just to law which could be draconian.
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).
Ultimately, any individual freedoms, including of the media, can be limited by individuals deciding in concert, for example through a parliament. Without that consensus-based decision, a limitation on freedom which may be imposed by any of the arms of the state will consistently be held up to public scrutiny and criticism.
The draft 2013 Constitution in Fiji, by removing the words ‘as long as the limitation is reasonable in a free and democratic society’ from the Bill of Rights chapter encourages greater public scrutiny of limitations placed on people’s rights, including freedom of expression and the media.
The legal foundation of Freedom of the Media is the people’s right to information.
If the mass media are controlled or managed (by self-censorship, by multi-national companies, or by state law or judicial decisions), it means that the people do not have access to vital information that may affect their lives and livelihood.
Dr Shaista Shameem was a journalist with the Fiji Times and Herald 1976-1979 and columnist 1979-1983.