3 Freedom of expression and the Internet
The Internet has opened up new possibilities for the realisation of the right to freedom of expression. This is due to the Internet’s unique characteristics, including ‘its speed, worldwide reach and relative anonymity’.[9] These distinctive features have enabled individuals to use the Internet to disseminate information in ‘real time’, and to mobilise people.[10] The United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (Special Rapporteur) asserts that:
Unlike any other medium the Internet facilitated the ability of individuals to seek, receive and impart information and ideas of all kinds instantaneously and inexpensively across national borders. By vastly expanding the capacity of individuals to enjoy their right to freedom of opinion and expression, which is an ‘enabler’ of other human rights, the Internet boosts economic, social and political development, and contributes to the progress of humankind as a whole.[11]
Insofar as freedom of expression is concerned, the Internet presents a compelling platform for the decentralising of information and of institutional control – at its best it acts as a leveller to access to knowledge.
However, as the Special Rapporteur acknowledges, ‘like all technological inventions, the Internet can be misused to cause harm to others.[12]
3.1 Freedom of expression in human rights theory
The right to freedom of expression is deeply rooted in historical thought and underpinned by a number of largely interdependent rationales.
Of these is the ‘truth rationale’ where ‘true opinion’ can be identified, and ‘false ideas’ exposed through criticism – a process facilitated by a free-flowing ‘marketplace of ideas’.[13]
The ‘democratic rationale’ identifies freedom of expression as necessary for the functioning of a truly representative government.[14] The HRC has emphasised the importance of press and media freedom for a democratic society:
A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. ... The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.[15]
A core rationale for freedom of expression is the ‘self-determination rationale’, in which free speech is conceived of as an aspect of self-realisation and individual autonomy.[16] The ability to relate our thoughts and experiences is seen as an intrinsic part of being human, and therefore restrictions on this ability are viewed as inhibiting both individual autonomy and the ability to attain self-fulfilment.
In this vein, the HRC has also noted that freedom of information and expression, while central to democratic governance, is not restricted to political information and expression; it
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, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising.[17]
Accordingly, the right to freedom of expression has been described as an ‘enabler of other rights’ such as economic, social and cultural rights (i.e. rights to education and to take part in cultural life) as well as civil and political rights (i.e. rights to freedom of association and assembly).[18]
3.2 Freedom of expression and information in Australian law
In Australia there is no express Constitutional or legislative protection of the freedom of expression at the federal level (in contrast to human rights legislation in force in the ACT and Victoria),[19] Despite this, the courts have an important role in interpreting legislation consistently with human rights where possible.[20]
Although not expressly protected at a federal level, freedom of expression does enjoy some implied and residual[21] protection. The Australian High Court has held that an implied freedom of political communication ‘is an indispensable incident of the system of representative government which the Constitution creates’. [22]
The freedom of political communication found by the High Court to be implicit in the Constitution is unlikely to have the same breadth of subject matter as article 19(2) of the ICCPR, insofar as the latter goes beyond political matters. However, the very fact of restrictions being placed on freedom of expression on other subjects – including on grounds such as decency - may in some instances itself give the restricted or prohibited expression the status of political communication.
A number of potential restrictions on the right to freedom of expression are contemplated by Australian laws, including in laws on sedition;[23] national security;[24] telecommunications;[25] racial hatred;[26] copyright;[27] defamation;[28] perjury;[29] contempt of court;[30] fraud;[31] privacy,[32] and censorship in classification and broadcasting.[33]
A number of these laws are based on valid grounds for restriction referred to in article 19(3) of the ICCPR. However, questions remain as to whether some of these laws would meet the levels of transparency and proportionality required by article 19(3).
These questions raise broader concerns about censorship and the Internet. In particular, the Special Rapporteur notes the use of arbitrary blocking or filtering of content where such mechanisms are used to regulate and censor information on the Internet, with multi-layered controls that are often hidden from the public.[34] An example of such a system close to home was the Australian Government’s now discontinued mandatory Internet filtering proposal. This attracted wide-ranging criticism as providing broad and imprecisely defined parameters on what constituted ‘refused classification’ materials, resulting in websites being captured by the filter which were described by critics of the proposal as relatively innocuous.[35]
As the Special Rapporteur points out, excessive censoring can occur where the specific conditions that justify blocking are not established in law or are legislated for in an ‘overly broad and vague manner’.[36] In addition, even where justification for blocking exists, blocking measures may constitute a disproportionate means to achieving the purported aim, and content may frequently be blocked without the possibility of judicial or independent review.[37] This situation requires the balancing of freedom of expression against other rights and considerations that should be taken into account in achieving the appropriate balance.
3.3 Right to freedom of expression and information in human rights instruments
‘Human rights’ for the purposes of the Commission’s work include the rights and freedoms recognised in the ICCPR, including the right to freedom of expression and information in article 19. As discussed on the Commission’s webpage on the right to freedom of information, opinion and expression,[38] this right is also recognised and expanded on in the Convention on the Rights of the Child (CRC)[39] and the Convention on the Rights of Persons with Disabilities.[40] Freedom of expression and information is also recognised in article 19 of the Universal Declaration of Human Rights.[41]
The following discussion will focus on the right to freedom of expression as recognised by article 19 of the ICCPR.
[9] F La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Report to the Human Rights Council, 17th session, UN Doc A/HRC/17/27 (2011), p 7. At http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx (viewed 27 August 2013.
[10] F La Rue, above, p 7.
[11] F La Rue, above, p 19.
[12] F La Rue, above.
[13] D Rolph, M Vittins and J Bannister, Media Law: Cases, Materials and Commentary (2010), pp 23-26.
[14] D Rolph, M Vittins and J Bannister, above, p 23.
[15] Human Rights Committee, General Comment No. 34, note 4, para 13.
[16] D Rolph, M Vittins and J Bannister, note 13, p 23.
[17] Human Rights Committee, General Comment No. 34, note 4, para 11 (emphasis added).
[18] F La Rue, note 9, p 7.
[19] See the Human Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities Act 2006 (Vic).
[20] See the Commission’s page Common law rights and human rights scrutiny for more discussion: http://www.humanrights.gov.au/common-law-rights-and-human-rights-scrutiny.
[21] See Brown v Classification Review Board (1997) 154 ALR 67, in which French J stated (at 76): ‘A person may say and write anything he pleases except in so far as he may not’. See also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, in which the High Court stated (at 567): ‘Within our legal system, communications are free only to the extent that they are left unburdened by the laws that comply with the Constitution’.
[22] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 599. See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd & New South Wales v Commonwealth (1992) 177 CLR 106, and the discussion in D Rolph, M Vittins, J Bannister, note 12, pp 32-43.
[23] See the ‘urging violence’ offences in ss 80.2 – 80.2B of the Criminal Code Act 1995 (Cth).
[24] See, for example, the restrictions which may be placed on communication by certain individuals who are made the subject of control orders or preventative detention orders: Criminal Code Act 1995 (Cth) s 104.5(3)(e) and ss 105.15, 105.16, and 105.34.
[25] See the offences in Part 10.6, Div 474, Sub-div C of the Criminal Code Act 1995 (Cth).
[26] See, for example, Racial Discrimination Act 1975 (Cth) s 18C; Anti-Discrimination Act 1977 (NSW) s 20C; Racial and Religious Tolerance Act 2001 (Vic) ss 7 and 8.
[27] See the Copyright Act 1968 (Cth).
[28] See the discussion in N O’Neill, S Rice and R Douglas, Retreat From Injustice: Human Rights Law in Australia (2nd ed, 2004), Chapter 17.
[29] See, for example, Crimes Act 1900 (NSW) s 327.
[30] See the discussion in N O’Neill, S Rice and R Douglas, note 28, Chapter 16, particularly the section entitled ‘Contempt by Criticising or “Scandalising” the Courts’.
[31] See, for example, Crimes Act 1900 (NSW) s 192G.
[32] See the Privacy Act 1988 (Cth).
[33] See for example Classification (Publications, Films and Computer Games) Act 1995 (Cth) and the Broadcasting Services Act 1992 (Cth).
[34] F La Rue, note 9, p 9.
[35] A Moses, ‘Filter was white elephant waiting to happen’, The Sydney Morning Herald, 9 November 2012. At http://www.smh.com.au/technology/technology-news/filter-was-white-elephant-waiting-to-happen-20121109-2923o.html (viewed 27 August 2013).
[36] F La Rue, note 9, p 10.
[37] F La Rue, above.
[38] See http://www.humanrights.gov.au/right-freedom-information-opinion-and-expression#other.
[39] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC). At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 27 August 2013).
[40] Opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). At http://www.austlii.edu.au/au/other/dfat/treaties/ATS/2008/12.html (viewed 27 August 2013).
[41] Universal Declaration of Human Rights, UN General Assembly Resolution 217A(III), UN Doc A/810, 71 (UDHR) (1948). At http://www.un.org/en/documents/udhr/ (viewed 27 August 2013).