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+&##,-. -/ B2')'-) 5), 012&#$$'-)




By Toby Nenuel
Executive Biiectoi
Centie foi Law anu Bemociacy
tobylaw-uemociacy.oig



CD C)%&-,:(%'-)

It is univeisally acknowleugeu that the iight to fieeuom of expiession is a
founuational human iight of the gieatest impoitance. It is a lynchpin of uemociacy,
key to the piotection of all human iights, anu funuamental to human uignity in its
own iight. At the same time, it is also univeisally iecogniseu that it is not an
absolute iight, anu eveiy uemociacy has uevelopeu some system of limitations on
fieeuom of expiession.

Inteinational law uoes pioviue foi a geneial thiee-pait test foi assessing
iestiictions on fieeuom of expiession, anu this test has been elaboiateu on in
numeious juugments by inteinational couits taskeu with oveisight of inteinational
human iights tieaties. National couits, often inteipieting constitutional guaiantees
which aie baseu on oi aie similai to inteinational guaiantees, have also helpeu
elaboiate the piecise meaning of the test foi iestiictions on fieeuom of expiession.

Assessing iestiictions on fieeuom of expiession, howevei, is an extiemely complex
mattei. Theie aie seveial ieasons foi this, incluuing that the piimaiy guaiantee of
fieeuom of expiession is itself multifaceteu, that the giounus foi iestiicting fieeuom
of expiession - oi inteiests which such iestiictions aim to piotect - aie numeious,

- 2 -
anu that the contexts in which the neeu foi iestiictions is asseiteu aie almost
limitless.

This Papei pioviues an oveiview of the key issues ielating to iestiictions on
fieeuom of expiession, uesciibing how inteinational anu in some cases national
couits have appioacheu them. It also highlights some pioblem aieas oi issues which
iemain uncleai oi which lack sufficient elaboiation. Foi these, it poses questions
which might be consiueieu by paiticipants at the two meetings foi which the Papei
seives as backgiounu mateiial. It uoes not, on the othei hanu, elaboiate on specific
aieas of iestiictions - such as uefamation law, meuia iegulation anu piotection of
national secuiity. To uo justice to these issues woulu iequiie a full-length book.

CCD E?# "'*?% %- +&##,-. -/ 012&#$$'-)

The iight to fieeuom of expiession is guaianteeu in veiy similai teims by both
Aiticle 19 of the "#$%&'()* +&,*)')-$.# .# /01)# 2$34-( (0BBR),
1
a 0N ueneial
Assembly iesolution, anu Aiticle 19(2) of 5#-&'#)-$.#)* 6.%&#)#- .# 6$%$* )#7
8.*$-$,)* 2$34-( (ICCPR),
2
a foimally binuing legal tieaty iatifieu by 16S States.
S
The
lattei states:

Eveiyone shall have the iight to fieeuom of expiession; this iight shall incluue fieeuom
to seek, ieceive anu impait infoimation anu iueas of all kinus, iegaiuless of fiontieis,
eithei oially, in wiiting oi in piint, in the foim of ait oi thiough any othei meuia of his
choice.

All of the thiee iegional human iights tieaties - the 90'.:&)# 6.#%&#-$.# .# /01)#
2$34-( (ECBR),
4
the ;1&'$,)# 6.#%&#-$.# .# /01)# 2$34-( (ACBR)
S
anu the ;<'$,)#
64)'-&' .# /01)# )#7 8&.:*&(= 2$34-( (ACBPR)
6
- guaiantee the iight to fieeuom of
expiession, iespectively at Aiticle 1u, Aiticle 9 anu Aiticle 1S. These guaiantees aie
laigely similai to those founu in the ICCPR.

It is not uisputeu that fieeuom of expiession is a iight of the gieatest impoitance. At
its veiy fiist session in 1946 the 0niteu Nations ueneial Assembly ueclaieu:

Fieeuom of infoimation is a funuamental human iight anu ... the touchstone of all the
fieeuoms to which the 0niteu Nations is conseciateu.
7


Regional couits anu othei bouies, as well as national couits aiounu the woilu, have

1
United Nations General Assembly Resolution 217A (III), 10 December 1948.
2
UN General Assembly Resolution 2200 A (XXI), 16 December 1966, entered into force 23 March 1976.
3
As of March 2010.
4
Adopted 4 November 1950, entered into force 3 September 1953.

5
Adopted 22 November 1969, entered into force 18 July 1978.

6
Adopted 26 June 1981, entered into force 21 October 1986.
7
Resolution 59(1), 14 December 1946. The term freedom of information as used here was meant in its
broadest sense as the overall free flow of information and ideas in society, or freedom of expression.

- S -
ieaffiimeu this. Foi example, the Intei-Ameiican Couit of Buman Rights has stateu:

Fieeuom of expiession is a coineistone upon which the veiy existence of a uemociatic
society iests.
8


The Euiopean Couit of Buman Rights has noteu:

|Fjieeuom of expiession constitutes one of the essential founuations of |a uemociaticj
society, one of the basic conuitions foi its piogiess anu foi the uevelopment of eveiy
man.
9


Anu the Afiican Commission on Buman anu Peoples' Rights has inuicateu, in iespect
of Aiticle 9 of the Afiican Convention:

This Aiticle ieflects the fact that fieeuom of expiession is a basic human iight, vital to
an inuiviuual's peisonal uevelopment, his political consciousness, anu paiticipation in
the conuuct of the public affaiis of his countiy.
1u


At the same time, fieeuom of expiession is not absolute anu eveiy system of law
pioviues foi some limitations on it. Aiticle 19(S) of the ICCPR pioviues:

The exeicise of the iights pioviueu foi in paiagiaph 2 of this aiticle caiiies with it
special uuties anu iesponsibilities. It may theiefoie be subject to ceitain iestiictions,
but these shall only be such as aie pioviueu by law anu aie necessaiy:
(a) Foi iespect of the iights oi ieputations of otheis;
(b) Foi the piotection of national secuiity oi of public oiuei (oiuie public), oi of
public health oi moials.

This has been inteipieteu as meaning that only iestiictions which meet a stiict
thiee-pait test aie consiueieu to be legitimate (see below).
11


Inteinational guaiantees of the iight to fieeuom of expiession have a numbei of key
featuies. Fiist, opinions aie absolutely piotecteu by Aiticle 19(1) of the ICCPR.
Technically, of couise, opinions aie not expiessions. But it is significant that they aie
affoiueu absolute piotection. This means that it is peimissible to think the most evil
anu uepiaveu thoughts, although giving expiession to them may legitimately
waiiant a sanction.

Seconu, the iight applies to 'eveiyone'. It must be piotecteu "without uistinction of
any kinu, such as iace, coloui, sex, language, ieligion, political oi othei opinion,
national oi social oiigin, piopeity, biith oi othei status".
12


8
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory
Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 70.
9
Handyside v. United Kingdom, 7 December 1976, Application No. 5493/72, 1 EHRR 737, para. 49.
10
Media Rights Agenda and Others v. Nigeria, 31 October 1998, Communication Nos. 105/93, 130/94,
128/94 and 152/96, para. 52.
11
See, Mukong v. Cameroon, 21 July 1994, Communication No. 458/1991, para. 9.7 (UN Human Rights
Committee).

- 4 -

Thiiu, it applies to infoimation anu iueas of any kinu. As the 0N Buman Rights
Committee, the bouy of expeits taskeu with oveiseeing compliance with the ICCPR,
has inuicateu, this incluues any infoimation oi iueas which may be communicateu:

Aiticle 19, paiagiaph 2, must be inteipieteu as encompassing eveiy foim of subjective
iueas anu opinions capable of tiansmission to otheis..
1S


It also incluues factually incoiiect statements, opinions which appeai to lack any
meiit, anu even offensive statements. As the Euiopean Couit of Buman Rights has
noteu:

It matteis little that |anj opinion is a minoiity one anu may appeai to be uevoiu of meiit
since . it woulu be paiticulaily unieasonable to iestiict fieeuom of expiession only to
geneially accepteu iueas."
14


Fouith, piotection is also wiue in teims of the mannei in which a communication is
uisseminateu. This is signalleu by the phiase "thiough any othei meuia of his
choice" in Aiticle 19(2) of the ICCPR as well as the teim "capable of tiansmission to
otheis" in the quote fiom the Buman Rights Committee above. The mannei of
uissemination, as well as the foim of the expiession, has often been taken into
account by inteinational couits when assessing the legitimacy of a iestiiction.
Scieaming a statement out to an angiy ciowu is not the same as incoipoiating that
statement into a poem.
1S


Fifth, the guaiantee piotects not only the iight to impait infoimation anu iueas - the
iight of the speakei; piotection is extenueu to the iights to seek anu ieceive
infoimation anu iueas - the iights of the listenei. As the Intei-Ameiican Couit of
Buman Rights put it so compenuiously:

|Wjhen an inuiviuual's fieeuom of expiession is unlawfully iestiicteu, it is not only the
iight of that inuiviuual that is being violateu, but also the iight of all otheis to "ieceive"
infoimation anu iueas. . Its seconu aspect, on the othei hanu, implies a collective iight
to ieceive any infoimation whatsoevei anu to have access to the thoughts expiesseu by
otheis. . Foi the aveiage citizen it is just as impoitant to know the opinions of otheis oi
to have access to infoimation geneially as is the veiy iight to impait his own opinions.
16


In a case ueciueu last yeai, the 0N Buman Rights Committee helu that the iefusal of
the 0zbek authoiities to iegistei a newspapei was a uenial not only of the fieeuom

12
Article 2(1) of the ICCPR.
13
Ballantyne and Davidson v. Canada, Communication No. 359/1989 and McIntyre v. Canada,
Communication No. 385/1989, 31 March 1993, para. 11.3.
14
Hertel v. Switzerland, 25 August 1998, Application No. 25181/94, para. 50.
15
See, for example, Karatas v. Turkey, 8 July 1999, Application No. 23168/94, para. 52 (European Court
of Human Rights).
16
Note 8, para. 30.

- S -
of expiession iights of the euitoi, but also of the iight of a ieauei of the newspapei
to ieceive infoimation anu iueas.
17


This is a veiy impoitant aspect of the iight which seives as an unueipinning foi,
among othei things, iules piohibiting unuue concentiation of meuia owneiship, the
iight to access infoimation helu by public bouies, anu using the piocess of licensing
to piomote uiveisity in the bioaucasting sectoi. It may be noteu that the inteiests of
listeneis can sometimes conflict with those of speakeis - foi example wheie an
ownei wishes to builu a laige meuia empiie - which can iaise uifficult conceptual
issues fiom the peispective of fieeuom of expiession.

Finally, while fieeuom of expiession is piimaiily negative in natuie, inasmuch as it
constiains the State's ability to limit expiession, it also has an impoitant positive
uimension. In this aspect, the iight iequiies States to take positive action to piotect
it. This falls into two main categoiies. Fiist, the State may be unuei a positive
obligation to take action to pievent piivate actois fiom inteifeiing with the exeicise
of fieeuom of expiession by otheis, a foim of hoiizontal application of iights. Thus
inteinational couits have often helu that States must act to pievent oi investigate
attacks by piivate actois on meuia outlets oi otheis.
18


Seconu, the State may be iequiieu to put in place positive measuies to ensuie that
its own actions contiibute to the fiee flow of infoimation anu iueas in society, what
may be teimeu 'uiiect' positive measuies. This might involve, foi example, putting in
place a system foi licensing bioaucasteis which helps ensuie uiveisity anu limit
meuia concentiation.
19
Peihaps the most significant example of this is the ielatively
iecent iecognition of the obligation of States to put in place a legal fiamewoik to
pioviue foi access to infoimation helu by public bouies.
2u


The tiauitional thiee-pait test foi iestiictions on fieeuom of expiession uoes not
woik foi eithei of these types of positive obligations. Thus, in >?3@' A@#7&1 %B
C0'D&E, the Euiopean Couit of Buman Rights helu that Tuikey hau faileu to
uischaige its positive obligation to piotect a newspapei against attacks by otheis. In
uoing so, howevei, it uiu not apply the thiee-pait test foi iestiictions on fieeuom of
expiession. Insteau, it postulateu, anu then applieu, a uiffeient soit of test:

In ueteimining whethei oi not a positive obligation exists, iegaiu must be hau to the
faii balance that has to be stiuck between the geneial inteiest of the community anu the

17
Mavlonov v. Uzbekistan, 27 April 2009, Communication No. 1334/2004, para. 8.4.
18
See, for example, zgr Gndem v. Turkey, 16 March 2000, Application No. 23144/93 (European Court
of Human Rights), Commission Nationale des Droits de lHomme et des Libertes v. Chad, October 1995,
No. 74/92 (African Commission on Human and Peoples Rights) and Miranda v. Mexico, 13 April 1999,
Report No. 5/99, Case No. 11.739 (Inter-American Commission on Human Rights).
19
See, for example, Recommendation 2007(2) of the Committee of Ministers of the Council of Europe on
Media Pluralism and Diversity of Media Content, adopted 31 January 2007.
20
See Claude Reyes and Others v. Chile, 19 September 2006, Series C No. 151 (Inter-American Court of
Human Rights) and Trsasg A Szabadsgjogokrt v. Hungary, 14 April 2009, Application No. 37374/05
(European Court of Human Rights).

- 6 -
inteiests of the inuiviuual, the seaich foi which is inheient thioughout the Convention.
The scope of this obligation will inevitably vaiy, having iegaiu to the uiveisity of
situations obtaining in Contiacting States, the uifficulties involveu in policing mouein
societies anu the choices which must be maue in teims of piioiities anu iesouices.
21


Similaily, in 6*)07& 2&E&( )#7 F-4&'( %B 64$*&, the Intei-Ameiican Couit of Buman
Rights uiu not engage in a thiee-pait test analysis to finu that the State is unuei a
positive obligation to pioviue access to infoimation helu by public bouies. Rathei,
the Couit baseu its finuings on inteinational statements suppoiting the iight to
infoimation, the fact that many countiies have iight to infoimation laws anu the
impoitance of access to infoimation to uemociatic objectives such as accountability
anu paiticipation.
22


Theie aie goou ieasons foi this since an absence of measuies to piomote fieeuom of
expiession is funuamentally uiffeient fiom iestiictions. The absence of positive
action cannot be assesseu by iefeience to the existence of a law, as iequiieu by the
"pioviueu by law" pait of the test. Fuitheimoie, the natuie of the competing
inteiests is uiffeient. As is cleai fiom the unuem case, positive obligations will
often involve expenuituies, anu these neeu to be weigheu against othei social
piioiities, iathei than balanceu against a iisk of haim to a piotecteu inteiest.

At the same time, the absence of any establisheu test oi at least fiamewoik foi
assessing whethei a State is unuei a positive obligation to pioviue piotection foi
fieeuom of expiession - whethei thiough a hoiizontal application of iights oi
uiiectly - is pioblematical. Among othei things, it means that the scope of the iight
to fieeuom of expiession is uncleai, both to States anu to those who benefit fiom the
iight.

Positive obligations, paiticulaily of a uiiect natuie, aie also ielevant to an
assessment of iestiictions in anothei way. Wheie effective, positive measuies will
enhance the fiee flow of infoimation anu iueas in society, often contiibuting to the
ability of all gioups to engage in expiessive activities thiough gieatei uiveisity of
the means of communication. As such, they change the unueilying enviionment -
fosteiing moie speech, which may then be moie effective in counteiing 'bau speech'
- anu hence the calculation of 'necessity'. This may be paiticulaily ielevant, foi
example, in assessing whethei iacist speech incites to hatieu. Wheie the iacist
speech is effectively counteieu, this is less likely to be the case. Wheie othei voices
aie few oi unable to expiess themselves, the iacist speech is moie likely to cieate
hatieu.

!"#$%&'()
! What soit of test might be applieu to assess whethei oi not a State is unuei a
positive obligation - of eithei a hoiizontal oi uiiect natuie - to piotect
fieeuom of expiession.

21
Note 18, para. 43 et seq.
22
Note 20, paras. 77-87.

- 7 -

CCCD F?5% G-)$%'%:%#$ 5 "#$%&'(%'-) -& C)%#&/#&#)(#
The fiist step in assessing whethei a paiticulai measuie oi situation bieaches the
iight to fieeuom of expiession is to assess the thiesholu question of whethei oi not
someone's iight to fieeuom of expiession has been inteifeieu with oi iestiicteu. If it
has, one then pioceeus to apply the thiee-pait test.

The scope of what constitutes an inteifeience with fieeuom of expiession is veiy
wiue. The Euiopean Convention on Buman Rights, foi example, iefeis to any
"foimalities, conuitions, iestiictions oi penalties" imposeu on the exeicise of the
iight. In many cases, it is faiily obvious that theie has been an inteifeience, foi
example wheie someone has been sanctioneu foi making a statement oi pieventeu
fiom establishing a meuia outlet. Inteinational couits take a wiue view of this. Foi
example, the 0N Buman Rights Committee helu that iemoving a teachei fiom the
classioom foi iacist statements maue outsiue of the classioom, while keeping him
employeu on the same conuitions, was an inteifeience with his iight to fieeuom of
expiession (albeit ultimately one that was justifieu by iefeience to the thiee-pait
test).
2S


It is, howevei, only wheie a public actoi is involveu that the question of an
inteifeience with fieeuom of expiession is iaiseu. A piivate stoie ownei, foi
example, has eveiy iight to piohibit inuiviuuals fiom campaigning in hei stoie,
wheieas piohibiting the same activity in a public place must be justifieu. States may
be unuei a positive obligation to pievent piivate action that inteifeies with fieeuom
of expiession, but that is uiffeient.

Thiesholu issues aiise in ueteimining what is a public bouy. In the 0niteu Kinguom,
foi example, the Piess Complaints Commission (PCC), a piivate bouy set up by
newspapei euitois to pioviue a complaints mechanism foi the public foi the piint
meuia accepteu that it shoulu be subject to ieview unuei the Buman Rights Act as if
it weie a public bouy.
24
This coulu be pioblematical because one of the ieasons self-
iegulatoiy bouies like the PCC aie effective is because they aie not subject to the
same constiaints that public bouies aie. In 6)()7. 6.,) %B G:)$#, the Euiopean Couit
of Buman Rights helu that the bai association was a public bouy, both because it
was a public law coipoiation anu because it seiveu the public inteiest.
2S


A uifficult issue aiises wheie a measuie uesigneu to piomote fieeuom of expiession
- foi example a iule piohibiting unuue concentiation of meuia owneiship - may
also be claimeu to be a iestiiction on fieeuom of expiession - in this case of an
ownei who wishes to builu a laige meuia empiie. It may be noteu that a
piomotional measuie which also impacts on fieeuom of expiession may be eithei

23
Ross v. Canada, 1 May 1996, Communication No. 736/1997.
24
See R (Ford) v Press Complaints Commission, [2001] EWHC Admin 683; [2002] EMLR 95.
25
26 January 1994, Application No. 15450/89, para. 39.

- 8 -
negative (as in the example just given) oi positive (foi example wheie the
piomotion of uiveisity is an aspect of the system foi licensing of bioaucasteis anu
this leaus to someone's application foi a licence being iefuseu). In most cases, such
measuies aim to piomote the iight to ieceive infoimation anu iueas at the expense
of the iight to impait them. As such, they pit the speakei against the listenei. This
may be seen as a contest between a piivate iights mouel of fieeuom of expiession
anu one which seeks to pieseive public expiessive space, oi a tiauitional, non-
inteifeience, paiauigm against one which calls foi iegulation to piotect the iight to
ieceive.

Regaiuless of this, because piomotional measuies, by uefinition, aim to piotect
fieeuom of expiession, iathei than a competing inteiest, it is not appiopiiate to
iequiie them to be justifieu by iefeience to the thiee-pait test. This test is uesigneu
to assess iestiictions on fieeuom of expiession, anu it piesents a high baiiiei to
theii acceptance. To iequiie measuies uesigneu to piomote fieeuom of expiession
to suimount this baiiiei woulu be to eiect a piesumption against theii valiuity;
specifically, it woulu assign hieiaichical supeiioiity to the iight to impait
infoimation ovei the iight to ieceive it (oi to one conception of the iight ovei
anothei). This is cleaily not appiopiiate unuei the inteinational law foimulation of
fieeuom of expiession, which uoes not suggest that one oi anothei aspect of the
iight has lexical supeiioiity ovei anothei.

0n the othei hanu, these measuies must meet some stanuaiu of legitimacy, foi
otheiwise measuies which seiiously limiteu fieeuom of expiession anu yet weie
ineffective in achieving any piomotional objective woulu be alloweu to stanu.
Inteinational couits have not auuiesseu this issue uiiectly anu, in the few cases
wheie it has aiisen, have skateu ovei the cential issues. In the 0niteu States, the
issue of anti-concentiation of meuia owneiship iules was iaiseu in a 194S case in
which anti-concentiation iules set by the iegulatoi, the Feueial Communications
Commission, weie challengeu by meuia companies on the basis that they violateu
the Fiist Amenument (which piotects fiee speech).
26
The Supieme Couit easily
iejecteu the challenge, but its ieasoning was limiteu. Fuitheimoie, the iules
piotecteu small meuia playeis against the laigei netwoiks, so the uiiect (speakei)
fiee speech element was faiily pionounceu.

It is submitteu that piomotional measuies shoulu be ueemeu legitimate only wheie
they meet a uual test of effectiveness anu piopoitionality.
27
Wheie they can be
shown not to be effective in theii piimaiy piomotional goal (foi example of
pieventing concentiation of owneiship oi of piomoting meuia uiveisity) - foi
example because they aie not well-uesigneu oi because new technologies oi
business mouels enable them to be siue-steppeu - they shoulu be iejecteu as
unjustifiable limitations on fieeuom of expiession. Fuitheimoie, wheie theii

26
National Broadcasting Co. v. U.S., 319 U.S. 190 (1943).
27
See Mendel, Toby, Restrictions on Political Expression in European Audiovisual Observatory,
Political Debate and the Role of the Media (2004, Strasbourg, European Audiovisual Observatory).

- 9 -
negative impact on fieeuom of expiession is uispiopoitionate to the benefits they
cieate foi the iight, they shoulu again be iejecteu. This might be the case, foi
example, wheie a measuie uiu pievent concentiation of owneiship, but it also
inhibiteu the oveiall uevelopment of the sectoi.

!"#$%&'($)
! What stanuaius shoulu be applieu to ueteimine whethei oi not a bouy is a
public bouy foi puiposes of ueteimining whethei theie has been an
inteifeience with the iight to fieeuom of expiession.
! Is the uual effectiveness anu piopoitionality test foi assessing the legitimacy
of measuies uesigneu to piomote fieeuom of expiession the iight one. If not,
what shoulu the test be.

CHD 6&-I',#, => J5K
The fiist pait of the thiee-pait test foi iestiictions on fieeuom of expiession is that
the iestiiction must be pioviueu foi by law. This iequiiement will be fulfilleu only
wheie the law is accessible. Seciet laws may be legitimate in some ciicumstances,
but not wheie they limit fieeuom of expiession. This is faiily obvious, as the whole
aim of such a law shoulu be to ensuie that inuiviuuals uo not make statements
which cause haim. As the Euiopean Couit of Buman Rights has stateu: "the citizen
must be able to have an inuication that is auequate in the ciicumstances of the legal
iules applicable to a given case".
28


It is cleai that the teim 'law' encompasses uiffeient types of laws, incluuing
auministiative, civil anu ciiminal laws, as well as a constitution.
29
It is also cleai that
in common law systems, legal noims uevelopeu thiough the case law (i.e. common
law noims) meet the iequisite stanuaiu.
Su
This is potentially pioblematical, in
paiticulai wheie the iestiiction in question applies to ciiticism of the
auministiation of justice oi, even moie so, juuges as inuiviuuals, as with the law on
contempt of couit. In such cases, theie is no sepaiation between making anu
applying the iules, potentially a bieach of the iight to an effective iemeuy as
guaianteeu by Aiticle 2(S) of the ICCPR.
S1


It is less cleai that seconuaiy noims of law, such as iegulations passeu by the
executive unuei the authoiity of piimaiy legislation, meet the stanuaius of

28
The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para. 49.
29
Refah Partisi (The Welfare Party) and Others v. Turkey, 13 February 2003, Application Nos. 41340/98,
41342/98, 41343/98 and 41344/98 (European Court of Human Rights), para. 58 et seq.
30
The European Court of Human Rights has often accepted such norms as meeting the provided by law
part of the test for restrictions. See the Sunday Times, note 28, para. 47 and Observer and Guardian v.
United Kingdom, 26 November 1991, Application No. 13585/88, para. 50-53.
31
In many common law countries, judges can issue a conviction for contempt of court in a mini-proceeding
inside of the main proceeding, immediately after the allegedly contemptuous statement has been made, or
by way of summary proceedings before the judge or court to whom or which the statements relate. The
South African Constitutional Court has ruled that this is a breach of the right to freedom of expression. See
State v. Mamabolo, 2001(3) SA 409.

- 1u -
inteinational law. An impoitant iationale foi the iule is piecisely to limit who may
impose iestiictions on iights anu how this may be uone.

The Intei-Ameiican Couit of Buman Rights issueu an Auvisoiy 0pinion on this issue
in 1986,
S2
in which it assesseu the meaning of the teim 'law' in Aiticle Su of the
ACBR, which states:

The iestiictions that, puisuant to this Convention, may be placeu on the enjoyment oi
exeicise of the iights oi fieeuoms iecognizeu heiein may not be applieu except in
accoiuance with laws enacteu foi ieasons of geneial inteiest anu in accoiuance with the
puipose foi which such iestiictions have been establisheu.

The Couit uevoteu some attention to the iuea that the meaning of this teim
piecluueu executive action to iestiict iights, noting that iights iepiesent "inviolable
attiibutes of the inuiviuual that cannot be legitimately iestiicteu thiough the
exeicise of goveinmental powei",
SS
that it is "essential that state actions affecting
basic iights not be left to the uiscietion of the goveinment",
S4
anu that it cannot be
the case that "funuamental iights can be iestiicteu at the sole uiscietion of
goveinmental authoiities with no othei foimal limitation than that such iestiictions
be set out in piovisions of a geneial natuie".
SS
The Couit thus helu:

The Couit concluues that the woiu "laws," useu in Aiticle Su, can have no othei
meaning than that of foimal law, that is, a legal noim passeu by the legislatuie anu
piomulgateu by the Executive Bianch, puisuant to the pioceuuie set out in the
uomestic law of each State.
S6


Bowevei, at the enu of the juugment, the Couit maue the following statement:

The above uoes not necessaiily negate the possibility of uelegations of authoiity in this
aiea, pioviueu that such uelegations aie authoiizeu by the Constitution, aie exeiciseu
within the limits imposeu by the Constitution anu the uelegating law, anu that the
exeicise of the powei uelegateu is subject to effective contiols..
S7


This, ieau in conjunction with the eailiei statements of the Couit, suggests that
piimaiy legislation uuly auopteu by the legislatuie might allocate the powei to the
executive oi an auministiative bouy to issue iules limiting fieeuom of expiession,
but appiopiiately constiains theii uiscietion to uo so, this will pass mustei unuei
the pioviueu by law pait of the test. What woulu not be peimitteu, howevei, woulu
be bioau allocations of powei which uiu not sufficiently constiain official uiscietion,
such as wiue poweis to a piesiuent to auopt ueciees oi oiuinances effectively to iun
the countiy, incluuing uuiing a claimeu state of emeigency.

32
The Word Laws in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-
6/86 of 9 May 1986, Series A, No. 6.
33
Ibid., para. 21.
34
Ibid., para. 22.
35
Ibid., para. 26.
36
Ibid., para. 27.
37
Ibid., para. 36.

- 11 -

In piactice, laws in many countiies uo allocate uiscietion to auministiative
authoiities to iestiict fieeuom of expiession. Foi example, in many countiies, the
bioaucast iegulatoi is given the powei to auopt a binuing coue of conuuct foi the
bioaucast meuia. 0ften, these laws giant ielatively bioau uiscietionaiy poweis to
iegulatois as to what might be incluueu in these coues. At the same time, this is
often consiueieu to be the least intiusive mannei of piomoting piofessional
stanuaius in bioaucasting anu piotecting vieweis anu listeneis against potential
haim.

A ielateu, but slightly uiffeient point, is that laws iestiicting fieeuom of expiession
shoulu not giant executive oi auministiative authoiities excessively bioau
uiscietionaiy poweis to limit expiession. In 2& F#-)'$. H$*1 )#7 I$7&. ;::'&,$)-$.#
G.,$&-E %B F#-)'$. J.)'7 .< 6&#(.'(, the 0ntaiio Bigh Couit consiueieu a law gianting
the Boaiu of Censois the powei to censoi any film it uiu not appiove of. In stiiking
uown the law, the Couit noteu that the evils of vagueness extenu to situations in
which unfetteieu uiscietion is gianteu to public authoiities iesponsible foi
enfoicing the law:

It is accepteu that law cannot be vague, unuefineu, anu totally uiscietionaiy; it must be
asceitainable anu unueistanuable. Any limits placeu on the fieeuom of expiession
cannot be left to the whim of an official; such limits must be aiticulateu with some
piecision oi they cannot be consiueieu to be law.
S8


The 0N Buman Rights Committee has also expiesseu concein about excessive
uiscietion, specifically in the context of bioaucast licensing:

The Committee expiesses its concein . about the functions of the National
Communications Agency, which is attacheu to the Ninistiy of }ustice anu has wholly
uiscietionaiy powei to giant oi ueny licences to iauio anu television bioaucasteis.
S9


Anothei aspect of the iequiiement that iestiictions be pioviueu by law is that the
law must be give auequate notice to those subject to it of what exactly is piohibiteu.
0theiwise, these laws will exeit an unacceptable "chilling effect" on fieeuom of
expiession as inuiviuuals stay well cleai of the potential zone of application in oiuei
to avoiu censuie. As the Euiopean Couit has stateu:

|Aj noim cannot be iegaiueu as a "law" unless it is foimulateu with sufficient piecision
to enable the citizen to iegulate his conuuct: he must be able - if neeu be with
appiopiiate auvice - to foiesee, to a uegiee that is ieasonable in the ciicumstances, the
consequences which a given situation may entail.
4u


Fuitheimoie, vague piovisions aie susceptible of wiue inteipietation by both
authoiities anu those subject to the law. As a iesult, they aie an invitation to abuse

38
(1983) 31 O.R. (2d) 583 (Ont. H.C.), p. 592.
39
Concluding Observations on Kyrgyzstans Initial Report, 24 July 2000, CCPR/CO/69/KGZ, para. 21.
40
Sunday Times, note 28, para. 49.

- 12 -
anu authoiities may seek to apply them in situations that beai no ielationship to the
oiiginal puipose of the law oi to the legitimate inteiest sought to be piotecteu.

Couits in many juiisuictions have emphasiseu the chilling effects that vague
piovisions have on fieeuom of expiession. The 0S Supieme Couit, foi example, has
cautioneu:

The constitutional guaiantees of fieeuom of speech foibiu the States to punish the use
of woius oi language not within "naiiowly limiteu classes of speech." . |Statutesj must
be caiefully uiawn oi be authoiitatively constiueu to punish only unpiotecteu speech
anu not be susceptible of application to piotecteu expiession. Because Fiist
Amenument fieeuoms neeu bieathing space to suivive, goveinment may iegulate in the
aiea only with naiiow specificity.
41


0n the othei hanu, it is not iealistic to expect laws to be peifectly piecise. They neeu
sufficient flexibility to be applieu in uiffeient ciicumstances, as well as to iemain
ielevant ovei time. This has also been iecogniseu by the Euiopean Couit:

Those consequences neeu not be foieseeable with absolute ceitainty: expeiience shows
this to be unattainable. Whilst ceitainty in the law is highly uesiiable, it may biing in its
tiain excessive iigiuity anu the law must be able to keep pace with changing
ciicumstances. Accoiuingly, many laws aie inevitably coucheu in teims which, to a
gieatei oi lessei extent, aie vague anu whose inteipietation anu application aie
questions of piactice.
42


The case law fails to pioviue much guiuance as to what uegiee of piecision is
iequiieu. Insteau, couits seem to iely heavily on the context, incluuing the natuie of
the iestiiction anu the sanctions which a bieach may attiact, when assessing this.

In /)(41)# )#7 /)''0: %B "#$-&7 K$#37.1, foi example, the Euiopean Couit of
Buman Rights helu that an oiuei foi the applicants not to bieach the peace oi
behave ,.#-') L.#.( 1.'&(, uefineu as "behavioui which is 'wiong iathei than iight
in the juugment of the majoiity of contempoiaiy fellow citizens'" was not
sufficiently piecise.
4S
Similaily, in /&',?&3<)*%E %B ;0(-'$), the same Couit helu that
piovisions in the Bospital Law useu to ueny a convicteu ciiminal uetaineu in
hospital access to iauio anu television anu to iestiict his coiiesponuence weie not
sufficiently piecise.
44
The main piovision in question was Aiticle S1(1) of the
Bospital Law, which stateu:

Patients who aie compulsoiily uetaineu ... may be subjecteu to iestiictions with iespect
to fieeuom of movement oi contact with the outsiue woilu.

0n the othei hanu, in M$#3'.%& %B "#$-&7 K$#37.1, the Euiopean Couit helu that

41
Gooding v. Wilson, 405 U.S. 518 (1972), p. 522.
42
Feldek v. Slovakia, 12 July 2001, Application No. 29032/95, para. 56.
43
25 November 1999, Application No. 25594/94, para. 35.
44
24 September 1992, Application No. 10533/83.

- 1S -
"blasphemy cannot by its veiy natuie lenu itself to piecise legal uefinition".
4S
In 2.((
%B 6)#)7), the Buman Rights Committee iecogniseu the "vague ciiteiia of the
piovisions" in question, but ielieu heavily on the Supieme Couit of Canaua in
holuing that they weie nonetheless sufficient to pass mustei as being pioviueu by
law.
46
The iules in question piohibiteu uisciimination in the piovision of seivices
anu establisheu a wiue iange of iemeuies to auuiess uisciimination wheie it uoes
occui.
47


!"#$%&'($)
! Shoulu it be open to the couits to uevelop common law iules which iestiict
fieeuom of expiession. What about iules which aim to piotect the
auministiation of justice. 0i juuges.
! Shoulu iestiictions on fieeuom of expiession auopteu by auministiative
bouies be consiueieu to meet the stanuaiu of pioviueu by law. If so, what
constiaints on theii uiscietion to auopt such iules aie necessaiy. What limits
on uiscietion aie necessaiy foi othei auministiative acts to be consiueieu
valiu.
! What uegiee of vagueness in a law is acceptable. Can piinciples on this be
foimulateu oi uoes it laigely uepenu on the ciicumstances.

HD J#*'%'.5%# L'.
The seconu pait of the test foi iestiictions on fieeuom of expiession is that the
iestiiction must be foi the piotection of a legitimate anu oveiiiuing inteiest. The list
of inteiests in Aiticle 19(S) of the ICCPR is exclusive in the sense that these aie the
only inteiests whose piotection might justify a iestiiction on fieeuom of
expiession.
48
Inteinational couits veiy iaiely stiike uown a iestiiction on the basis
of this pait of the test, anu the juiispiuuence iegaiuing it is ielatively
unueiuevelopeu.

In assessing whethei a iestiiction on fieeuom of expiession auuiesses a legitimate
aim, it seems cleai that both its puipose anu its effect shoulu be taken into account.
The Supieme Couit of Canaua has helu that wheie the oiiginal puipose was to
achieve an aim othei than one of those listeu, the iestiiction cannot be uphelu:

|Bjoth puipose anu effect aie ielevant in ueteimining constitutionality; eithei an
unconstitutional puipose oi an unconstitutional effect can invaliuate legislation.
49


Fuitheimoie, the Inuian Supieme Couit has helu that iestiictions must be
exclusively, not just tangentially, uiiecteu towaius the legitimate aim:

45
25 November 1996, Application No. 17419/90, para. 42.
46
18 October 2000, Communication No. 736/1997, para. 11.4.
47
Ross, a teacher who had published anti-Semitic work, was removed from his position as a teacher and
transferred to a non-teaching position.
48
See Mukong v. Cameroon, note 11, para. 9.7 (UN Human Rights Committee).
49
R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, p.331.

- 14 -

So long as the possibility |of a iestiictionj being applieu foi puiposes not sanctioneu by
the Constitution cannot be iuleu out, it must be helu to be wholly unconstitutional anu
voiu.
Su


In assessing this, couits go beyonu the geneial aim the law seives anu look at its
specific objectives. As the Canauian Supieme Couit has stateu:

}ustification unuei s.1 iequiies moie than the geneial goal of piotection fiom haim
common to all ciiminal legislation; it iequiies a specific puipose so piessing anu
substantial as to be capable of oveiiiuing the Chaitei's guaiantees.
S1


Aiticle Su of the ACBR, noteu above, iecognises as legitimate only iestiictions which
aie applieu foi the puipose foi which they weie auopteu.
S2


Inteinational couits, howevei, have tenueu to limit theii analysis unuei this pait of
the test to consiueiing whethei the law in question coulu plausibly seive one of the
legitimate aims listeu. The Euiopean Couit, foi example, uoes not assess whethei
the piimaiy puipose of the impugneu piovision is to piotect the legitimate aim, anu
it leaves the question of whethei an inteiest is 'piessing anu substantial' enough to
waiiant oveiiiuing a funuamental iight to the necessity pait of the analysis.

This aiguably unueimines the logic anu iigoui of the thiee-pait test, leaving too
much to hinge on the necessity analysis anu failing to enfoice the conuitions the
legitimate aim pait of the test was uesigneu to impose. Nany of the inteiests listeu
in Aiticle 19(S) of the ICCPR - incluuing the iights of otheis, public moials, national
secuiity anu public oiuei - aie quite geneial in natuie. A moie iigoious application
of the legitimate aim pait of the test coulu iule out those aspects of these inteiests
which uo not waiiant limiting a funuamental human iight.

0ne of the most geneial inteiests listeu in Aiticle 19(S) of the ICCPR is the iights of
otheis, which encompasses an extiemely wiue iange of potential ieasons to limit
fieeuom of expiession. It is cleai fiom 2.(( %B 6)#)7) that this incluues iights helu
by gioups oi communities, as well as by inuiviuuals.
SS


It might be aigueu that incluues only iights that aie piotecteu unuei inteinational
human iights law. This issue has not been auuiesseu uiiectly in the juiispiuuence,
but in piactice, inteinational couits uo not take this appioach. Foi example, in
6)()7. 6.,) %B G:)$#, the Euiopean Couit helu that a ban on auveitising by lawyeis
hau the aim of ensuiing that they weie "uiscieet, honest anu uignifieu".
S4
While this
is no uoubt a woithy goal, it haiuly qualifies as a funuamental human iight.

50
Thappar v. State of Madras, [1950] SCR 594, p.603.
51
R. v. Zundel, [1992] 2 SCR 731, p.733.
52
See also Principle 6 of the Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, 28 September 1984, UN Doc. E/CN .4/1985/4.
53
Note 23, para. 11.5.
54
Note 25, para. 46.

- 1S -

0n the othei hanu, to allow any piivate inteiest piotecteu by law to pass mustei
unuei this pait of the test woulu laigely uepiive it of any value, since the fiist pait of
the test alieauy iequiies that iestiictions be pioviueu by law. Any (sufficiently
accessible anu cleai) law puipoiting to piotect a piivate inteiest woulu, unuei this
inteipietation, pass the legitimate aim pait of the test. Even a law that piotecteu
politicians against statements that unueimineu theii electoial chances woulu be
acceptable (subject, of couise, to consiueiation unuei the necessity pait of the test).

Piinciple S6 of the Siiacusa Piinciples auuiesses this uifficult issue in the following
mannei:

When a conflict exists between a iight piotecteu in the Covenant anu one which is not,
iecognition anu consiueiation shoulu be given to the fact that the Covenant seeks to
piotect the most funuamental iights anu fieeuoms.
SS


This is helpful inasmuch as it seeks to pioviue piioiity to human iights, but it fails to
pioviue conciete guiuance as to the applicable stanuaius.

As noteu above, a numbei of the othei piotecteu inteiests aie also extiemely bioau
in natuie. Public moials aie not only haiu to uefine, anu change ovei time, but
uespite a numbei of cases on this, both nationally anu inteinationally, it iemains
veiy uifficult to iuentify what is being piotecteu. In the case of obscene mateiial, foi
example, the neeu to piotect chiluien is cleai enough in theoiy, if not necessaiily in
piactice, but once you go beyonu that the mattei becomes veiy messy. As }ustice
Pottei Stewait of the 0niteu States Supieme Couit once famously wiote of
poinogiaphy: "I shall not touay attempt fuithei to uefine the kinus of mateiial I
unueistanu to be embiaceu within that shoithanu uesciiption; anu peihaps I coulu
nevei succeeu in intelligibly uoing so. But I know it when I see it."
S6
It is submitteu
that the ieal pioblem heie is not the impossibility of uefining the concept, but lack of
claiity as to what is actually being piotecteu.

It is unueistoou that the teim "public oiuei (.'7'& :0L*$,)" in Aiticle 19(S) uoes not
iefei simply to the maintenance of physical oiuei, but also incluues "the
oiganization of society in a mannei that stiengthens the functioning of uemociatic
institutions anu pieseives anu piomotes the full iealization of the iights of the
inuiviuual".
S7
It iemains veiy uncleai what, within this potentially vast set of
notions, might constitute an inteiest sufficiently impoitant to waiiant oveiiiuing
the iight to fieeuom of expiession.

Peihaps the most notoiious inteiest piotecteu by Aiticle 19(S), in teims of potential
foi abuse as a iestiiction on fieeuom of expiession, is national secuiity. The

55
Note 52.
56
Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
57
Note 8, para. 66. See also Engel and others v. Netherlands, 23 November 1976, Application Nos.
5100/71, 5101/71, para. 98 (European Court of Human Rights).

- 16 -
pioblem is that, on the one hanu, national secuiity is a social value of the highest
oiuei, upon which the piotection of all human iights, inueeu oui whole way of life,
uepenus. 0n the othei hanu, it is veiy uifficult foi non-expeits, incluuing juuges, to
unueistanu anu assess what constitutes a thieat to secuiity, unueimining oveisight
mechanisms. This pioblem is compounueu by the shiouu of seciecy, sometimes
legitimate, that suiiounus national secuiity matteis. As Smolla has pointeu out:

Bistoiy is ieplete with examples of goveinment effoits to suppiess speech on the
giounus that emeigency measuies aie necessaiy foi suivival that in ietiospect appeai
panicky, uisingenuous, oi silly.
S8


The pioblem is such that even effoits by fieeuom of expiession pioponents to
uefine the nation have not always been successful. The N.4)##&(L0'3 8'$#,$:*&(O
P)-$.#)* G&,0'$-EQ H'&&7.1 .< 9R:'&(($.# )#7 ;,,&(( -. 5#<.'1)-$.#,
S9
foi example,
pioviues, in Piinciple 2, that a iestiiction is not legitimate unless its puipose anu
effect is to "piotect a countiy's existence oi its teiiitoiial integiity against the use oi
thieat of foice, oi its capacity to iesponu to the use oi thieat of foice" fiom eithei an
inteinal oi an exteinal thieat.
6u
This is an uniealistically limiteu uefinition. The
attacks of 11 Septembei 2uu1, foi example, coulu haiuly be saiu to have thieateneu
the existence oi teiiitoiial integiity of the 0S, unless this is inteipieteu so bioauly
as to laigely uefeat the puipose of this naiiow uefinition in the fiist place.

Inteinational couits have uone little to ieuiess this pioblem. In the few cases wheie
they have iefuseu to accept that a legitimate national secuiity inteiest was engageu,
eithei the abuse of the concept has been veiy egiegious oi the State has auuuceu no
eviuence at all to suppoit its claim.
61


In othei cases, howevei, the couits have shown a gieat ueal of uefeience to claims
by States about national secuiity inteiests. Thus, in the FL(&'%&' )#7 A0)'7$)# %B
"#$-&7 K$#37.1, the Euiopean Couit of Buman Rights was faceu with a case wheie a
book containing the memoiis of a foimei seciet agent hau been banneu in the
0niteu Kinguom, even though it hau alieauy been publisheu anu wiuely uistiibuteu
in Austialia anu the 0niteu States. It ueciueu the case unuei the necessity test, since
any possible haim to national secuiity hau alieauy become iiieveisible uue to piioi

58
Smolla, Rodney, Free Speech in an Open Society (New York: Knopf, 1992), p. 319.
59
Adopted by a group of experts convened by the international human rights NGO, ARTICLE 19.
(London: 1996).
60
This defintion, in turn, draws inspiration from Principle 29 of the Siracusa Principles, note 52.
61
For example, in Mukong, note 11, para. 9.7, Cameroon had claimed without providing any evidence that the
arrest and detention of the applicant was necessary to maintain national unity. In Tae-Hoon Park v. Republic
of Korea, 20 October 1998, Communication No. 628/1995, the UN Human Rights Committee noted, in
respect of a conviction under a national security law, that the State party has failed to specify the precise
nature of the threat which it contends that the author's exercise of freedom of expression posed (see para.
10.3). The applicant had been involved in a student association advocating for the reunification of North and
South Korea while studying in the United States. See also Sohn v. Korea, 19 July 1995, Communication No.
518/1992 (UN Human Rights Committee).

- 17 -
publication, iathei than assessing whethei oi not the ban seiveu a national secuiity
goal in the fiist place.
62


An even moie suipiising case involveu a Sweuish national who was uismisseu fiom
a job with the Sweuish goveinment on national secuiity giounus, but was iefuseu
access to the infoimation which pioviueu the basis foi his uismissal. The Euiopean
Couit founu an inteifeience with piivate life but helu that this was justifieu as
necessaiy to piotect Sweuen's national secuiity, even though no uiiect eviuence was
piesenteu of the allegeu thieat. The Couit was piepaieu to accept that official
safeguaius against abuse of the system weie sufficient.
6S
Ten yeais latei, it
tianspiieu that the inuiviuual hau been fiieu foi his political beliefs anu that the
Sweuish authoiities hau simply misleu the Couit.
64


!"#$%&'($)
! Is it enough foi inteinational couits to assess whethei a law coulu seive one
of the legitimate inteiests piotecteu unuei inteinational law unuei the
legitimate aim pait of the test. 0i shoulu they go fuithei to assess whethei
such piotection is a key puipose of the law oi piovision anu, fuitheimoie,
whethei oi not that specific puipose is sufficiently impoitant to waiiant
oveiiiuing a funuamental human iight.
! Shoulu the iefeience to "iights of otheis" in Aiticle 19(S) of the ICCPR be
unueistoou as being limiteu to the human iights of otheis, oi shoulu it
extenu to all iights piotecteu by law. In the lattei case, what conuitions
might be placeu on this notion to avoiu it seiiously unueimining this pait of
the test.
! Bow can othei piotecteu inteiests - incluuing public moials, public oiuei,
national secuiity - be uefineu moie naiiowly.

HCD A#(#$$5&>
The thiiu pait of the test is that iestiictions on fieeuom of expiession must be
"necessaiy" to piotect the inteiest iuentifieu unuei the seconu pait of the test. This
is the pait of the test upon which the legitimacy of a iestiiction hangs in the vast
majoiity of inteinational cases. 0nlike the othei two, this pait of the test piesents a
high stanuaiu to be oveicome by the State seeking to justify the iestiiction,
appaient fiom the following quotation, citeu iepeateuly by the Euiopean Couit:

Fieeuom of expiession, as enshiineu in Aiticle 1u, is subject to a numbei of exceptions
which, howevei, must be naiiowly inteipieteu anu the necessity foi any iestiictions
must be convincingly establisheu.
6S


62
Observer and Guardian v. United Kingdom, 26 November 1991, Application No. 13585/88, paras. 56-
71.
63
Leander v. Sweden, 26 March 1987, Application No. 9248/81.
64
On 27 November 1997 the Swedish government officially recognised that there were never any grounds
to label Leander a security risk and that he was wrongfully dismissed. They also paid him compensation
of 400,000 Swedish crowns (approximately US$48,000).
65
See, for example, Thorgeirson v. Iceland, 25 June 1992, Application No. 13778/88, para. 63.

- 18 -

"Necessaiy" is a complicateu notion but it has been inteipieteu to incluue a numbei
of uiffeient elements. Fiist, as noteu above, inteinational couits often assess
whethei oi not theie is a "piessing" oi "substantial neeu" foi the iestiiction.
66
This
assessment woulu seem to align moie logically with the question of whethei oi not
the iestiiction seiveu a legitimate aim but, in piactice, most inteinational couits
consiuei it unuei this pait of the test.

Seconu, it has been helu that the measuies to piotect the iight must be iationally
connecteu to the objective of piotecting the inteiest, in the sense that they aie
caiefully uesigneu so as to be the least intiusive measuies which woulu effectively
piotect it. This is somehow obvious since when iestiicting iights one may not "use a
sleuge-hammei to ciack a nut". As the Intei-Ameiican Couit of Buman Rights has
helu: "|Ijf theie aie vaiious options to |piotect the legitimate inteiestj, that which
least iestiicts the iight piotecteu must be selecteu.
67
Similaily, the Supieme Couit of
Canaua has helu:

Fiist, the measuies auopteu must be caiefully uesigneu to achieve the objective in
question. They must not be aibitiaiy, unfaii, oi baseu on iiiational consiueiations. In
shoit, they must be iationally connecteu to the objective.
68


An example of this might be systems foi iegulating haimful content in bioaucasting.
In some countiies, uiiectly applicable content piohibitions aie founu in the piimaiy
legislation. In otheis, the law pioviues foi the iegulatoi to woik with stakeholueis,
incluuing bioaucasteis, to uevelop a coue of conuuct which it applies thiough a
system of complaints leauing mainly to wainings foi bieach. Inasmuch as the lattei
is effective anu yet less intiusive, it is manuateu by the necessity pait of the test.
Theie is no ieason why this shoulu not also extenu to self-iegulatoiy systems foi the
meuia. Thus, if an effective self-iegulatoiy system is available, it will be uifficult to
justify layeiing a statutoiy system ovei this.

A closely ielateu but uiffeient notion is that a iestiiction shoulu not be oveibioau in
the sense that it taigets not only the haimful speech but also legitimate speech. 0nce
again, this makes obvious sense since it is not appiopiiate to go fuithei than is
necessaiy anu limit piotecteu statements. As the Intei-Ameiican Couit has noteu:
"Implicit in this stanuaiu, fuitheimoie, is the notion that the iestiiction, even if
justifieu by compelling goveinmental inteiests, must be so fiameu as not to limit the
iight piotecteu by Aiticle 1S moie than is necessaiy."
69
The 0S Supieme Couit has
similaily waineu against the uangeis of oveibioau iestiiction on speech:


66
See, for example, Lingens v. Austria, 8 July 1986, Application No. 9815/82, para. 39 (European Court of
Human Rights).
67
Compulsory Membership, note 8, para. 46.
68
R. v. Oakes, [1986] 1 SCR 103, pp.138-139.
69
Compulsory Membership, note 8, para. 46.

- 19 -
Even though the Governments purpose be legitimate and substantial, that purpose cannot be
pursued by means that stifle fundamental personal liberties when the end can be more
narrowly achieved.
70


The iational connection, anu to a lessei extent the oveibieauth, aspect of the
necessity test, howevei, is subject to some soit of piactical limitations. uoveinments
cannot always be expecteu to exploie eveiy possible option when limiting fieeuom
of expiession to piotect an oveiiiuing public oi piivate iight, although they may not
ignoie an obvious option. Similaily, even the most caiefully uesigneu iestiictions
may occasionally be applieu in a mannei that oveisteps appiopiiate bounus.

The Euiopean Couit of Buman Rights auuiesses this, in pait, thiough the
application of the uoctiine of the "maigin of appieciation". Thus, in ;41&7 )#7
F-4&'( %B "#$-&7 K$#37.1, the Euiopean Couit, assessing new iegulations which
iestiicteu the political activities of officials, stateu:

Against that background, the introduction of the Regulations had to be considered a
proportionate response to a real need which had been properly identified and addressed in
accordance with the respondent States margin of appreciation in this sector.
71


This may be ieasonable, but it lacks logical piecision. Put uiffeiently, the Couit has
faileu to uevelop cleai piinciples iegaiuing the application of the maigin of
appieciation.
72


Finally, it is well establisheu that iestiictions must meet a soit of piopoitionality
test, wheieby the benefit in teims of piotecting the inteiest must be gieatei than the
haim causeu to fieeuom of expiession. 0theiwise, on balance, the iestiiction cannot
be justifieu as being in the oveiall public inteiest. This goes to the substance of a
iestiiction, as well as to any sanction imposeu foi bieach of it.
7S


0veiall, the inteiests ueemeu to which may justify iestiictions on fieeuom of
expiession may be uiviueu ioughly into piivate anu public categoiies. When
inteinational couits aie faceu with claims baseu on piivate inteiests, they tenu to
assess the actual uamage causeu by the statements,
74
but when faceu with claims
baseu on public inteiests, such as national secuiity anu public moials, they aie moie

70
Shelton v. Tucker, 364 US 479 (1960), p. 488. See also R. v. Oakes, note 68, pp. 138-9: Second, the
means, even if rationally connected to the objective in this first sense, should impair as little as possible
the right or freedom in question.
71
2 September 1998, Application No. 22954/93, para. 59.
72
The Court has held that the margin is wider in relation to restrictions aimed at protecting moral values
than restrictions on political speech (see Wingrove v. United Kingdom, 25 November 1996, Application No.
17419/90, para. 58), but this is not the same as principles governing when it may be applied.
73
See, for example, Tolstoy Miloslavsky v. United Kingdom, 13 July 1995, Application No. 18139/91
(European Court of Human Rights).
74
Of course there are exceptions to this. Thus, in Goodwin v. United Kingdom, 27 March 1996, Application
No. 17488/90, the European Court of Human Rights was faced with an injunction against publication, and
the harm was projected rather than actual. In many cases, the precise extent of the harm for example from
a defamatory statement is not clear, but the existence of (at least some) harm is still established.

- 2u -
likely to assess the iisk of haim.
7S
This makes the assessment of whethei the
iestiiction was necessaiy fai moie complicateu.

Couits aiounu the woilu have sought to auuiess this by iequiiing a close nexus
between the impugneu speech anu the iisk of haim. Thus, the Supieme Couit of
Inuia has noteu:

The anticipateu uangei shoulu not be iemote, conjectuial oi fai fetcheu. It shoulu have
pioximate anu uiiect nexus with the expiession. The expiession shoulu be intiinsically
uangeious.. In othei woius, the expiession shoulu be insepaiably lockeu up with the
action contemplateu like the equivalent of a 'spaik in a powuei keg'.
76


In a case fiom South Afiica, GB %B P)-4$&, the appellant was chaigeu with inciting
offences against the uioup Aieas Act in the context of piotests against the iemoval of
Inuians fiom ceitain aieas. The appellant stateu, $#-&' )*$): "I want to ueclaie that to
iemain silent in the face of peisecution is an act of supieme cowaiuice. Basic laws of
human behavioui iequiie us to stanu anu fight against injustice anu inhumanity." The
Couit iejecteu the State's claim of incitement to ciime, holuing that since the passage in
question uiu not contain "any unequivocal uiiection to the listeneis to iefuse to obey
iemoval oiueis" it uiu not contiavene the law.
77


Peihaps the cleaiest anu stiongest statement of the neeu foi a close link between an
expiession anu the iisk of haim befoie the foimei may be iestiicteu comes fiom the
0niteu States, wheie the Supieme Couit has helu:

|Tjhe constitutional guaiantees of fiee speech anu fiee piess uo not peimit a state to foibiu
oi piosciibe auvocacy of the use of foice oi of law violation except wheie such auvocacy is
uiiecteu to inciting oi piouucing imminent lawless action anu is likely to incite oi piouuce
such action.
78


This lattei establishes a cleai test to be applieu. Inteinational couits, howevei, have
not been so piesciiptive, tenuing to iely insteau on a wiue iange of contextual
factois when assessing national secuiity iestiictions on fieeuom of expiession.
These uo incluue the natuie of the link between the expiession anu the iisk of haim,
but aie not limiteu to it.
79


!"#$%&'($)

75
For purposes of this analysis, hate speech rules are deemed to protect a public interest equality or
public order although in Ross, they were also considered as protection of the rights of a group.
76
S. Rangarajan v. P.J. Ram [1989](2) SCR 204, p. 226.
77
[1964](3) SA 588 (A), p. 595 A-D.
78
395 U.S. 444, 447 (1969).
79
See, for example, Zana v. Turkey, 25 November 1997, Application No. 18954/91 (European Court of
Human Rights), Incal v. Turkey, 9 June 1998, Application No. 22678/93 (European Court of Human
Rights) and Arslan v. Turkey, 8 July 1999, Application No. 23462/94 (European Court of Human Rights).

- 21 -
! When assessing whethei a measuie is the least intiusive means to piotect an
inteiest, shoulu non-binuing systems, such as meuia self-iegulatoiy
complaints systems, be taken into account.
! What guiuance can be given as to how to balance the neeu foi iestiictions on
fieeuom of expiession to be iationally connecteu to the piotecteu inteiest
anu not to be oveibioau, anu the neeu foi some flexibility in uesigning these
measuies.
! Shoulu inteinational couits uo moie to uevelop piinciples goveining the
nexus that is iequiieu between a paiticulai expiession anu the iisk of haim
to a public inteiest befoie the lattei may be iestiicteu. What guiuance can be
given to them in this iegaiu.

HCCD 6-$'%'I# "#M:'&#.#)%$ %- "#$%&'(% 012&#$$'-)
The analysis above has focuseu laigely on the question of when a State may iestiict
fieeuom of expiession, shoulu it wish to uo so. A few piovisions of inteinational law
specifically iequiie States to iestiict fieeuom of expiession to piotect othei iights
oi inteiests. Foi example, Aiticle 2u of the ICCPR states:

(1) Any piopaganua foi wai shall be piohibiteu by law.
(2) Any auvocacy of national, iacial oi ieligious hatieu that constitutes incitement to
uisciimination, hostility oi violence shall be piohibiteu by law.

Aiticle 17 of the ICCPR piotects against both "aibitiaiy oi unlawful inteifeience"
with piivacy anu "unlawful attacks" on honoui anu ieputation. It also calls foi "the
piotection of the law" against such inteifeience oi attacks (Aiticle 17(2)). This is
uistinctly weakei than the Aiticle 2u piotections, inasmuch as it only calls foi
piotection against aibitiaiy oi unlawful attacks.
8u
Piotection against unlawful
attacks - the only piotection affoiueu to ieputation - is piesumably uepenuent on
the existence of a national law piohibiting the attack in the fiist place.

}uuicial inteipietation of some iights has also calleu foi iestiictions to be imposeu
on fieeuom of expiession. Foi example, the Euiopean Couit of Buman Rights has
helu that the iight to piivacy places a positive obligation on the State to pioviue
auequate piotection against attacks by otheis on both piivacy anu ieputation.
81


A question aiises as to whethei, when balancing fieeuom of expiession against
othei iights which iequiie the foimei to be limiteu, such limitations shoulu be
assesseu by iefeience to the thiee-pait test foi iestiictions on fieeuom of
expiession. A seconu question aiises as to whethei positive claims foi piotection of
othei iights shoulu be tieateu in the same way as claims against iestiictions on

80
Some of the regional human rights treaties do guarantee respect for privacy. See, for example, Article 8
of the European Convention on Human Rights (ECHR), adopted 4 November 1950, E.T.S. No. 5, entered
into force 3 September 1953. The European Court of Human Rights has also read a right to reputation into
this guarantee. See, for example, Pfeifer v. Austria, Application No. 12556/03, 15 November 2007.
81
Pfeifer v. Austria, 15 February 2008, Application No. 12556/03.

- 22 -
fieeuom of expiession. It may be noteu that all of the cases involving hate speech
befoie both the 0N Buman Rights Committee anu the Euiopean Couit of Buman
Rights have involveu complaints of a violation of the iight to fieeuom of expiession
(fiom the application of hate speech laws), iathei than claims that the absence of
hate speech laws faileu to pioviue auequate piotection foi equality. Bowevei, cases
involving fieeuom of expiession anu piivacy oi ieputation incluue claims of
violations of both iights.

The 0N Buman Rights Committee, in a numbei of cases involving iestiictions on
iacist speech, has specifically helu that such a iestiiction hau to be justifieu by
iefeience to the test set out in Aiticle 19(S) of the ICCPR.
82
The uiafting histoiy of
Aiticles 19 anu 2u of the ICCPR, as well as the case law, suggests that the iestiictions
that aie peimitteu by the foimei aie veiy close to the iestiictions iequiieu by the
lattei.
8S
This suggests that only intentional incitement of hatieu, uisciimination oi
violence woulu meet the stiictuies of Aiticle 19(S).
84


The Euiopean Couit, howevei, takes a uiffeient appioach in uiffeient cases
involving hate speech, uepenuing on its appieciation of the natuie of the speech in
question. In some cases, it holus that the speech is not subject to piotection unuei
the guaiantee of fieeuom of expiession on the basis that it constitutes an activity
aimeu at the uestiuction of othei iights (specifically to equality), contiaiy to Aiticle
17 of the Euiopean Convention.
8S
Aiticle 17 stipulates that nothing in the Euiopean
Convention may be inteipieteu as giving anyone the iight to engage in any activity
aimeu at the uestiuction oi unuue limitation of the iights it pioclaims. In othei
cases, the Couit engages in the tiauitional thiee-pait assessment of iestiictions on
fieeuom of expiession.
86
It is haiu to point to any cleaily uecisive factois, let along a
conciete test, in the Couits uecisions that woulu justify these iauically uiffeient
appioaches. Rathei, it seems that the ioute uepenus on whethei, ) :'$.'$, the Couit
seems convinceu that the authoi of the statements was motivateu by iacist intent.

This haiuly seems appiopiiate anu it is submitteu that a bettei appioach woulu be
to take the inteiests piotecteu by Aiticle 17 into account when assessing the

82
See, for example, Ross v. Canada, note 46, para. 11.1 and Faurisson v. France, 8 November 1986,
Communication No. 550/1993, para. 9.4.
83
See Bossuyt, M., Guide to the Travaux Prparatoires of the International Covenant on Civil and
Political Rights (Dordrecht: Martinus Nijhoff Publishers, 1987), pp. 398-411. See also Faurisson v.
France, note 82, concurring opinion of Evatt, Kretzmer and Klein, para. 4.
84
The term advocacy of hatred in Article 20(2) is widely seen as requiring intent.
85
See, for example, Garaudy v. France, 7 July 2003, Application No. 65831/01 and Norwood v. United
Kingdom, 16 November 2004, Application No. 23131/03. In both of these cases, the Court rejected the
applications as inadmissible on the basis of Article 17.
86
See, for example, Jersild v. Denmark, 22 August 1994, Application No. 15890/89, Incal v. Turkey, 9
June 1998, Application No. 22678/93 and Lehideux and Isorni v. France, 23 September 1998, Application
No. 24662/94.

- 2S -
necessity of the iestiiction.
87
It may be noteu that this woulu not limit the impact of
Aiticle 17. Rathei, it woulu foice uecision-makeis to take into account the vaiious
factois that have been establisheu foi assessing iestiictions on fieeuom of
expiession.

An assessment of the piivacyieputation cases befoie the Euiopean Couit is also
instiuctive. In some cases, as noteu, the Couit is faceu with a claim of a bieach of the
iight to fieeuom of expiession in light of a iestiiction baseu on piivacy oi
ieputational inteiests. In such cases, the Couit goes thiough the thiee-pait test,
sometimes finuing a bieach of the iight to fieeuom of expiession anu sometimes
upholuing the iestiiction.
88


Bowevei, when the Couit is faceu with a claim that piivacy oi the iight to a
ieputation has been bieacheu in light of a publisheu statement, the essence of the
claim is that national law uoes not pioviue enough piotection to these iights (i.e.
that the State has not met its positive obligations in this iegaiu). This, like positive
claims foi piotection of fieeuom of expiession, cannot go thiough a puie thiee-pait
test analysis. Theie is not necessaiily a iestiiction that is being challengeu; insteau,
the uecision, if it holus theie was a bieach, is calling foi (auuitional) iestiictions on
fieeuom of expiession. Fuitheimoie, the veiy basis of the application is that piivacy
oi ieputation, both legitimate inteiests, is not sufficiently piotecteu.

The ieal issue is how to come to an appiopiiate balance between fieeuom of
expiession anu the competing iight anu, in paiticulai, whethei this shoulu involve a
necessity analysis, as with othei iestiictions on fieeuom of expiession. In piactice,
the Euiopean Couit has not establisheu any soit of test oi appioach, but simply
weigheu up, in a seemingly iathei ianuom way, vaiious competing factois.
89
This is
no uoubt a complicateu mattei. But that uoes not ielieve inteinational couits of
theii obligation to pioceeu with iigoui when appioving, oi iequiiing, iestiictions on
funuamental human iights.

!"#$%&'($)
! It is appiopiiate to use piovisions like Aiticle S of the ICCPR anu Aiticle 17 of
the Euiopean Convention, which iule out the use of a iight foi activities
aimeu at the unuue limitation of othei iights, to avoiu application of the
thiee-pait test foi iestiictions on fieeuom of expiession.
! When positive conceptions of othei iights involve iestiictions on fieeuom of
expiession, shoulu the thiee-pait test oi some othei test be applieu. If the
lattei, what soit of test.

87
It may be noted that Article 5(1) of the ICCPR is almost identical in its language to Article 17 of the
European Convention, and yet the Human Rights Committee has not relied on it to dismiss claims of a
breach of the right to freedom of expression, even in the context of highly racist speech.
88
See, for example, Fressoz and Roire v. France, 21 January 1999, Application No. 29183/95 and Egeland
and Hanseid v. Norway, 16 April 2009, Application No. 34438/04.
89
See, for example, Pfeifer, note 81, para. 44 et seq. and I.# /)##.%&' %B A&'1)#E, 24 June 2004,
Application No. 59320/00, para. 58 et seq.