10.1 International human rights and freedom of expression

International human rights law provides a crucial framework for protecting freedom of expression globally. Key treaties like the UDHR and ICCPR enshrine this right, while regional instruments and UN bodies further elaborate on its scope and limitations.

These international standards shape domestic media regulations, obligating states to align laws with treaty commitments. While challenges remain in balancing competing rights, international mechanisms offer guidance and accountability for safeguarding press freedoms worldwide.

International Legal Framework for Freedom of Expression

Universal Declaration of Human Rights (UDHR) and Freedom of Expression

• The Universal Declaration of Human Rights (UDHR), adopted by the United Nations in 1948, recognizes freedom of expression as a fundamental human right in Article 19
• Article 19 of the UDHR states that everyone has the right to freedom of opinion and expression, which includes the right to hold opinions without interference and to seek, receive, and impart information and ideas through any media, regardless of frontiers
• The UDHR serves as a foundation for the development of international human rights law and has inspired the inclusion of freedom of expression provisions in various international and regional treaties

International Covenant on Civil and Political Rights (ICCPR) and Freedom of Expression

• The International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty, further elaborates on the right to freedom of expression in its Article 19
• Article 19 of the ICCPR includes the right to seek, receive, and impart information and ideas through any media, which encompasses a wide range of forms of expression, including oral, written, and artistic expression, as well as the right to access information held by public authorities
• The ICCPR recognizes that the right to freedom of expression may be subject to certain restrictions, but such restrictions must be provided by law and necessary for the respect of the rights or reputations of others or for the protection of national security, public order, public health, or morals

Regional Human Rights Instruments and Freedom of Expression

• Regional human rights instruments, such as the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and Peoples' Rights (ACHPR), also protect freedom of expression within their respective jurisdictions
• These regional treaties contain provisions similar to Article 19 of the ICCPR, affirming the right to freedom of expression and allowing for certain limitations under specific circumstances
• Regional human rights courts, such as the European Court of Human Rights and the Inter-American Court of Human Rights, interpret and apply these treaties in cases involving alleged violations of freedom of expression, setting regional standards for the protection of this right

UN Human Rights Committee and Special Rapporteur on Freedom of Expression

• The United Nations Human Rights Committee, a body of independent experts, monitors the implementation of the ICCPR and provides authoritative interpretations of its provisions through General Comments and decisions on individual complaints
• General Comment No. 34 on Article 19 of the ICCPR, adopted by the Human Rights Committee in 2011, provides detailed guidance on the scope and limitations of the right to freedom of expression, emphasizing the importance of a free, uncensored, and unhindered press or other media
• The United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression is an independent expert appointed by the UN Human Rights Council to monitor and report on the status of freedom of expression worldwide
• The Special Rapporteur conducts country visits, communicates with governments on alleged violations, and presents annual reports to the Human Rights Council and the General Assembly, providing recommendations for the better protection of freedom of expression

Role of Human Rights Treaties in Media Freedoms

Obligations of State Parties to Respect and Protect Media Freedoms

• International human rights treaties, such as the ICCPR, ECHR, ACHR, and ACHPR, obligate state parties to respect and protect the right to freedom of expression, including media freedoms
• States must refrain from unduly restricting media freedoms, such as through censorship, the arbitrary closure of media outlets, or the imprisonment of journalists for their work
• States must also create an enabling environment for a free and independent media, including by adopting laws and policies that promote media pluralism, independence, and access to information

Permissible Limitations on Media Freedoms under Human Rights Treaties

• The treaties allow for certain limitations on freedom of expression, but such restrictions must be prescribed by law, pursue a legitimate aim (such as protecting national security or public order), and be necessary and proportionate in a democratic society
• Any restrictions on media freedoms must be narrowly tailored and not used as a pretext for unjustified censorship or the silencing of critical voices
• The necessity and proportionality of restrictions on media freedoms are subject to scrutiny by international human rights bodies, which assess whether the restrictions are justified in light of the specific circumstances and the importance of the right to freedom of expression

Interpretation and Application of Human Rights Treaties by International Bodies

• International human rights bodies, such as the UN Human Rights Committee and regional human rights courts, interpret and apply these treaties in specific cases, setting standards for the protection of media freedoms
• These bodies have developed a rich body of case law on issues such as the protection of journalistic sources, the right of access to information, and the decriminalization of defamation
• The decisions and opinions of these bodies provide guidance to states on how to comply with their obligations under human rights treaties and contribute to the development of international standards on media freedoms

Accountability for Violations of Media Freedoms under Human Rights Treaties

• States that violate their obligations under these treaties can be held accountable through international human rights mechanisms, such as individual complaints procedures or periodic reporting to treaty bodies
• Individuals or organizations can bring complaints against states for alleged violations of media freedoms before the UN Human Rights Committee or regional human rights courts, provided that domestic remedies have been exhausted
• States are required to report periodically to treaty bodies on their implementation of human rights obligations, including in the area of media freedoms, and these reports are subject to review and recommendations by the treaty bodies

Balancing Freedom of Expression vs Other Rights

Conflicts between Freedom of Expression and Other Human Rights

• Freedom of expression may conflict with other human rights, such as the right to privacy, the right to freedom from discrimination, or the right to a fair trial
• For example, media reporting on criminal proceedings may risk prejudicing the right to a fair trial, while the publication of private information may infringe on the right to privacy
• In such cases, a careful balancing of the competing rights is necessary, taking into account the importance of the rights at stake and the specific circumstances of each case

Challenges Posed by Hate Speech and Freedom of Expression

• Hate speech, which targets individuals or groups based on protected characteristics such as race, religion, or sexual orientation, poses a challenge to the balance between freedom of expression and the right to equality and non-discrimination
• While freedom of expression protects offensive and controversial speech, hate speech that incites violence or discrimination may be legitimately restricted under international human rights law
• States must strike a delicate balance between protecting freedom of expression and preventing hate speech, ensuring that any restrictions are proportionate and do not unduly limit legitimate forms of expression

Impact of Digital Technologies on Balancing Freedom of Expression and Other Rights

• The rise of digital technologies and social media platforms has created new challenges in balancing freedom of expression with the right to privacy and the protection of personal data
• Online anonymity and encryption, while important for the exercise of freedom of expression, may also be used to facilitate illegal activities or the spread of disinformation
• States and private actors must navigate the complex issues surrounding content moderation, data protection, and surveillance in the digital age, ensuring that any measures taken are consistent with international human rights standards

Balancing Freedom of Expression with Other Rights in Times of Crisis

• In times of crisis, such as public health emergencies or national security threats, states may seek to restrict freedom of expression in the name of protecting other rights or interests, raising concerns about the proportionality and necessity of such measures
• For example, during the COVID-19 pandemic, some states have restricted media reporting on the public health response or criminalized the spread of "false information" about the virus, which may unjustifiably limit freedom of expression
• International human rights law requires that any restrictions on freedom of expression in times of crisis be strictly necessary, proportionate, and limited in duration, and that states provide transparent and compelling justifications for such measures

Framework for Balancing Competing Rights and Interests under International Human Rights Law

• International human rights law provides a framework for balancing competing rights and interests, requiring any restrictions on freedom of expression to be lawful, necessary, and proportionate to the aim pursued
• The necessity and proportionality of restrictions must be assessed on a case-by-case basis, taking into account factors such as the nature and severity of the restriction, the importance of the competing rights or interests, and the availability of alternative measures
• International human rights bodies, such as the UN Human Rights Committee and regional human rights courts, have developed jurisprudence on how to balance freedom of expression with other rights in specific contexts, providing guidance to states on how to navigate these complex issues

Impact of International Human Rights Law on Domestic Media Regulations

Obligation to Align Domestic Laws with International Human Rights Treaties

• States that have ratified international human rights treaties are obliged to bring their domestic laws and practices in line with their treaty obligations, including in the area of media regulation
• This may require states to repeal or amend laws that unduly restrict media freedoms, such as criminal defamation laws or overly broad national security provisions
• States must also ensure that their media regulatory frameworks promote media pluralism, independence, and access to information, in accordance with international human rights standards

Guidance Provided by International Human Rights Standards for Domestic Media Laws

• International human rights standards, as interpreted by treaty bodies and other expert mechanisms, provide guidance for the development of domestic media laws and policies that are consistent with the right to freedom of expression
• For example, the Joint Declaration on Universality and the Right to Freedom of Expression, adopted by the UN Special Rapporteur on freedom of expression and regional human rights mechanisms in 2014, sets out principles for the regulation of digital technologies in a manner that respects freedom of expression
• The Camden Principles on Freedom of Expression and Equality, developed by the NGO ARTICLE 19, provide guidance on how to balance freedom of expression with the right to equality and non-discrimination in the context of hate speech

Role of Domestic Courts in Applying International Human Rights Law to Media Regulations

• Domestic courts may refer to international human rights law when interpreting and applying national media regulations, ensuring that such regulations are compatible with international standards
• In some countries, international human rights treaties are directly applicable in the domestic legal system, allowing individuals to invoke their rights under these treaties before national courts
• Even in countries where international treaties are not directly applicable, domestic courts may still use international human rights law as an interpretive aid or as a source of persuasive authority when assessing the validity of media regulations

Advocacy and Strategic Litigation Using International Human Rights Mechanisms

• Civil society organizations and media advocacy groups can use international human rights mechanisms, such as the UN Special Rapporteur on freedom of expression or regional human rights courts, to challenge domestic media laws or practices that violate international standards
• By submitting shadow reports to treaty bodies, filing individual complaints, or engaging in strategic litigation, these actors can draw international attention to violations of media freedoms and pressure states to bring their laws and practices in line with international standards
• Successful advocacy and litigation at the international level can lead to changes in domestic media laws and policies, as states seek to avoid international condemnation and reputational damage

Factors Affecting the Impact of International Human Rights Law on Domestic Media Regulations

• The impact of international human rights law on domestic media regulations may vary depending on factors such as the state's level of engagement with the international human rights system, the strength of domestic rule of law, and the political will to implement international standards
• In states with a strong commitment to human rights and an independent judiciary, international human rights law may have a more direct and immediate impact on domestic media regulations
• In states with weaker human rights records or limited domestic enforcement of international obligations, the impact of international human rights law may be more gradual and dependent on sustained advocacy and pressure from civil society and the international community
• The effectiveness of international human rights mechanisms in influencing domestic media regulations may also be affected by factors such as the resources and capacity of these mechanisms, the willingness of states to cooperate with them, and the support they receive from other international actors