Freedom of expression: Constitutional/human rights instruments and issues arising

By SR Bagopal

The scope of freedom of expression is continuing to evolve and we are duty bound to rise to the challenges we have to meet in terms of adapting our laws to international best practices as well as the speed at which information is now being disseminated globally

Freedom of expression is enshrined in our Constitution by virtue of article 12 which provides as follows:

“Protection of freedom of expression

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or

(c) for the imposition of restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society.”

Furthermore, the fact that everyone has the right to freedom of expression has been explicitly set out in several human rights instruments such as Article 19 of the Universal Declaration on Human Rights, Article 19 of the International Convention on Civil and Political Rights, Article 13 of the American Convention on Human Rights and Article 9(2) of the African Charter on Human and Peoples’ Rights.

Freedom of expression can take many forms, encompassing verbal, artistic and physical expression. There is no doubt that freedom of expression is the cornerstone of every democratic society. Due to the indivisibility of rights, freedom of expression and opinion is linked to a number of other rights including linguistic rights, freedom of assembly and association, freedom of the press, right to privacy and freedom from State interference in correspondence and personal property.

The origins of the rights-based concept of free speech can probably be traced to the 17^th Century when documents such as the 1688 English Bill of Rights provided for freedom of speech for legislators within the confines of Parliament. It was thus impossible for a Member of Parliament to be impeached for anything that was said during a parliamentary debate. The same remains true today, with many assemblies and legislatures adopting a similar policy.

Interestingly, the biggest challenge and contributor to freedom of expression is the Internet. The Internet allows information to be processed at a speed that remains unrivalled and hitherto unparalleled. It can thus be argued that the Internet represents both a major challenge to international human rights and a lifeline to them at the same time. On the one hand this poses a legal challenge given that there are major problems of jurisdiction and related issues associated with the internet; on the other, the lifeline potential arises from the accessibility to millions of people worldwide of information pertaining to human rights abuses.

Let us now consider some other aspects of freedom of speech. It cannot be disputed that freedom of the press and media is a cornerstone of democratic societies. Thus the absence of press censorship is often regarded as one of the over manifestations of a free society in which individuals or groups may openly criticize the government in power and thus instigate debate on topics of national and regional interest.

A related issue to freedom of the press is the state-owned media. State-owned media is inevitably open to allegations of bias as are other methods of exercising State control over media enterprises. In relation to State-owned media, the litmus test is the degree of freedom accorded to the body in determining the content of any broadcasts or publications as well as the number and strength of other media enterprises in the system. Governments have every right, in terms of freedom of expression, to circulate their own views. However, if a State limits access to information to its own enterprise (for example by refusing to collaborate with or grant access to some journalists or media groups), this will put certain media enterprises at a distinct disadvantage.

If we consider Article 12 of our Constitution as well as other human rights instruments, freedom of expression is not and cannot go unfettered. Human rights instruments recognize a number of limitations on the exercise of freedom of expression. Limitations on freedom of expression are unfortunately necessary. With rights, come responsibilities and often, responsibilities are readily sacrificed on the altar of freedom of expression.

Obvious examples are propaganda for war or national, racial or religious hatred. With regard to these areas, international law is explicit in its condemnation of any propaganda for war or propaganda that is intended to excite national, racial or religious hatred. States are under an obligation to restrict freedom of expression in such cases. Where States fail to act decisively such as in the Rwandan genocide, the consequences can be catastrophic.

Anti-Semitism is also an area where freedom of expression is limited. In the case of Faurisson v France, the Human Rights Committee opined that Article 19 of the International Covenant on Civil and Political Rights was not infringed by punishing an individual for making statements promoting anti-Semitism.

Equally, freedom of expression may be limited for the purposes of national security. National security is crucial for the territorial integrity and sovereignty of any state, and all countries have intelligence agencies and all countries have “sensitive” information that they will be keen to avoid releasing in the public domain.

It is also important to recognise that a necessary limitation of freedom of expression is in relation to the rights and reputations of other individuals. Given the universality, interdependence and indivisibility of international human rights, there will always be occasions where those rights and freedom come into conflict. This is where the laws of libel, defamation and contempt come into play. Once the reputation and integrity of an individual or institution is attacked in the public domain, the damages are often consequential and long lasting.

It remains to be seen whether our existing legal framework for freedom of expression together with the limitations associated with this right are up to date with the latest international best practices. Our view is that we require a major revisiting of these areas to catch up with extensive advances made in human rights whilst we have remained content to rely on our laws dating back to the colonial era as well as our Constitution in relation to freedom of expression

The scope of freedom of expression is continuing to evolve and we are duty bound to rise to the challenges we have to meet in terms of adapting our laws to international best practices as well as the speed at which information is now being disseminated globally.

* Published in print edition on 21 October 2011