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4 Permissible limitations of the ICCPR right to freedom of expression

As noted above, article 19(3) of the ICCPR permits limitations on the rights recognised in article 19(2), but those limitations must be:

(1) provided by law and

(2) necessary for respect of the rights or reputations of others, for the protection of national security, public order, or public health or morals.

The HRC in its General Comment 34 has emphasised that:

when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself...the relation between right and restriction and between norm and exception must not be reversed. [42]

Australia’s Joint Parliamentary Committee on Human Rights has similarly made the point that:

Given the fundamental nature of this right, international human rights bodies have scrutinised with great care any limitations on freedom of expression, including the introduction of regulatory schemes for media. They have insisted that States demonstrate convincingly the need for measures which prevent or restrict the operation of a free and independent media, and have been especially concerned about content-based restrictions and restrictions which might inhibit the expression of views that contribute to public and political debate. [43]

The HRC further stated that:

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...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.[44]

 

4.1 Provided by law

The requirement for limitations regarding freedom of information and expression to be ‘provided by law’ is an important guarantee of the rule of law. It includes a formal requirement of legality - that is, that there be a legal basis for restrictions. It also includes substantive requirements. The HRC has noted:

For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not. [45]

4.2 Permissible purposes[46]

(a) Respect for the rights or reputations of others

Article 19(3) provides that freedom of expression may be limited where those limitations can be demonstrated to be necessary for ensuring ‘respect for the rights and reputations of others’.

A range of rights may present possible justifications for limitations on freedom of expression through the internet, including:

  • freedom from discrimination (article 2 of the ICCPR)
  • freedom from cruel, inhuman or degrading treatment (article 7 of the ICCPR and article 37(a) of the CRC)
  • the right of children to special protection (article 24 of the ICCPR and article 3 of the CRC)
  • freedom from arbitrary interference with home, family, correspondence or reputation privacy (article 17 of the ICCPR).

Whether particular restrictions on freedom of expression which are designed to protect these rights are justifiable will depend on more specific consideration of the restrictions concerned and the circumstances.

(i) Freedom from discrimination

Article 2(1) of the ICCPR requires parties to ensure the rights contained in that covenant to all individuals ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[47] is to similar effect.

In addition, article 26 of the ICCPR states that:

the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 

Article 20 of the ICCPR further states that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ It should be noted that Australia has made (and maintains) the following interpretative declaration and reservation regarding article 20:

Australia interprets the rights provided for by articles 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters.

The HRC has similarly indicated that article 20 of the ICCPR is required to be interpreted consistently with article 19:

Articles 19 and 20 are compatible with and complement each other. The acts that are addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As such, a limitation that is justified on the basis of article 20 must also comply with article 19, paragraph 3.[48]

The principal provision in federal law which is intended to address the requirements of article 20 of the ICCPR is s 18C of the Racial Discrimination Act 1975 (Cth) (RDA). Section 18C provides:

  • (1) It is unlawful for a person to do an act, otherwise than in private, if:
    • (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
    • (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

However, the application of s 18C of the RDA is subject to a wide range of exceptions (set out in s 18D) for things said or done reasonably and in good faith.

The protection against discrimination which is required by articles 2 and 26 of the ICCPR includes a broader range of grounds than are currently covered by any vilification provisions (such as 18C) under Australian anti-discrimination law. Any further legislation to implement articles 2 and 26 which restricted the right to freedom of expression would have to meet the requirements of ICCPR Article 19(3), including the requirements of necessity and proportionality.

In order to avoid impermissible limitations of the right to freedom of expression and information, particular caution would be required in the design and administration of any provisions addressing vilification on the basis of religion or belief. The Human Rights Committee has indicated:

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.[49]

(ii) Freedom from cruel, inhuman and degrading treatment

Article 7 of the ICCPR provides that ‘[n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.’ The right to be free from the types of ill-treatment listed in article 7 is not confined to actions affecting people in prison, in detention or in institutional environments; nor is it confined to actions by or on behalf of the State itself.

The Commission’s strategic priorities include violence, harassment and bullying.[50] Bullying in particular can be regarded as conduct (in whatever context) which could in more technical terms be referred to as ‘cruel’, ‘inhuman’ or ‘degrading’.

The specific right of children to be free from cruel, inhuman or degrading treatment is recognised in article 37(a) of the CRC. The Committee on the Rights of the Child has described cruel inhuman or degrading treatment in relation to children as including treatment which ‘belittles, humiliates, denigrates, scapegoats, threatens, scares or ridicules the child.’[51]

Any measure which is designed to protect children from being bullied over the Internet needs to balance:

  • the CRC’s interpretation of the right to protection from cruel, inhuman or degrading treatment (which the Commission endorses in relation to children), and
  • the rights to freedom of expression and information (including for children- see article 13 of the CRC), and the requirement that any restrictions of those rights be provided by law and necessary and proportionate.

(iii) Right of children to special protection

Higher levels of restrictions on the right to freedom of expression and information, as engaged by conduct affecting children, may be justifiable having regard to the rights of children to special protection under the CRC.

Article 24 of the ICCPR states that children are entitled to necessary measures of protection, on the part of their families, society and the State. Article 3(2) of the CRC requires States parties to ensure for children such care and protection as is necessary for their well-being, and take all necessary legislative and administrative measures to achieve this.

In this regard, article 17 of the CRC, which recognises the importance for children of access to information and material through the mass media, requires States parties to (among other things):

Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 [freedom of information and expression] and 18 [recognition of responsibilities of family].

In summary, while restrictions on access by children to some material on the Internet may be permissible (and in fact regarded as required), governments applying such restrictions are nonetheless required to justify with regard to the criteria for permissible limitations of the right to freedom of expression.

(iv) Right to privacy, family, home, correspondence, honour and reputation

Article 17 of the ICCPR states that:

  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

The HRC has indicated its view that ‘this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons.’[52]

However, the Committee has also observed that ‘[a]s all persons live in society, the protection of privacy is necessarily relative.’[53] Balancing the rights to privacy and/or protection of reputation with the rights to freedom of information and expression presents challenges. It is clear however that measures to protect these rights which limit freedom of expression and information must comply with the requirements set out in article 19(3) of the ICCPR.

(b) Public morals

Respect for “public morals” is a permissible justification for restricting the right to freedom of expression and information, subject to compliance with the conditions provided in 19(3) of the ICCPR. In its General Comment No. 34, the HRC stated:

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.[54]

As noted earlier, restrictions on this ground are also required to be sufficiently precise to comply with the requirement that restrictions be ‘provided by law’.

(c) Public order

Article 19(3) permits restrictions aimed at protecting public order (ordre public). The Commission has noted that this concept:

is clearly wider than the concept of ‘public order’ in the sense usually understood in Anglo-Australian law (dealing with prevention of breaches of the peace, offensive behaviour etc). It extends to the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. It equates with the ‘police power’ in United States jurisprudence, permitting regulation in the interests of legitimate public purposes. This power must itself, however be exercised in a manner consistent with human rights.[55]

Restrictions on promotion of unlawful activity would appear to be permissible under this heading (subject to the requirements of necessity and proportionality being met). The HRC has considered this point specifically in relation to counter-terrorism measures such as offences of “encouraging”, “praising” or “justifying” terrorism.[56]

4.3 Restrictions must be ‘necessary’ for a permitted purpose

The HRC has made clear its view that the requirement under article 19(3) that a measure limiting freedom of information and expression be ‘necessary’ imposes a substantial burden of justification on government agencies. It has stated that this equates to a requirement that any ‘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. The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination. For instance, the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.[57]

The HRC further stated that:

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.[58]

[42] Human Rights Committee, General Comment No. 34, note 4, para 21.

[43] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of legislation in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011: Bills introduced 12 – 14 March 2013, Fourth report of 2013 (2013), para 1.69. At http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=humanrights_ctte/reports/index.htm (viewed 27 August 2013).

[44] Human Rights Committee, General Comment No. 34, note 4, para 22.

[45] Human Rights Committee, General Comment No. 34, note 4, para 25.

[46] The permissible grounds for restrictions listed in article 19(3) include restrictions on the grounds of public health or national security, but discussion of circumstances in which these grounds might justify a limitation on the right to freedom of expression and to information as exercised through the Internet falls outside the scope of this present paper.

[47] Opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR). At http://www.austlii.edu.au/au/other/dfat/treaties/1976/5.html (viewed 27 August 2013).

[48] Human Rights Committee, General Comment No. 34, note 4, para 50.

[49] Human Rights Committee, General Comment No. 34, note 4, para 48.

[50] See the Commission’s Violence, Harassment and Bullying page: http://bullying.humanrights.gov.au/.

[51] Committee on the Rights of the Child, General Comment No. 8 (2006) - The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, UN Doc CRC/C/GC/8 (2006), para 11. At http://tb.ohchr.org/default.aspx?Symbol=CRC/C/GC/8 (viewed 27 August 2013).

[52] Human Rights Committee, General Comment No. 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation, UN Doc A/43/40 (1988), para 1. At http://www.refworld.org/docid/453883f922.html (viewed 27 August 2013).

[53] Human Rights Committee, General Comment No. 16, above, para 7.

[54] Human Rights Committee, General Comment No. 34, note 4, para 32.

[55] Human Rights and Equal Opportunity Commission, Letter to Ministers dated 9 May 1991 (Initial submission on proposed ban on political advertising) (1991), p 12 (citations omitted). At http://www.humanrights.gov.au/right-freedom-information-opinion-and-expression-0#Submissions

[56] See Human Rights Committee, General Comment No. 34, note 4, para 46.

[57] Human Rights Committee, General Comment No. 34, note 4, para 34.

[58] Human Rights Committee, General Comment No. 34, note 4, para 35.