Laws Regarding Freedom of Expression - Research Paper Example

Freedom of expression Introduction The right to freedom of expression is a fundamental human right that is accepted universally. Therefore, it is the responsibility of all democratic states to ensure that the right to freedom of expression is protected (Magee, 2002). In the same note, it is globally understood that the right to freedom of expression is not an absolute right. Considering this fact, democratic nations have come up with systems that limit the right to freedom of expression. It is important to mention that the international law provides a three part test that is useful in assessing limits on freedom of expression. On various occasions, the international courts responsible for overseeing international human right treaties have elaborated the three part test through judgments. In addition, national courts have also been useful in elaborating the exact meaning of the test for limitation of freedom expression (Zeno-Zencovich, 2008). The right to freedom of expression is assured in exact terms by the article 19 of the Universal Declaration on Human Rights, and the article 19 (2) of International Covenant on Civil and Political Rights. The three regional human rights treaties; the African Charter on Human and Peoples’ rights, the American Convention on Human Rights, and the European Convention on Human rights give an assurance for freedom of expression on Articles 13, 9, and 10 respectively. There is no doubt that the right to freedom of expression is of great importance. During the first session of the United Nations General Assembly, it was made clear that the freedom of information is an essential human right. In addition, t was made clear that the right forms the basis of all the other rights (Trager & Dickerson, 1999). Laws regarding freedom of expression Regional court, national courts, and other related organizations across the world have reaffirmed that indeed the freedom to information is the foundation of all other rights. The Inter-American court of human rights has pointed out that freedom of expression forms the foundation for the existence of a democratic society (Beatson, & Cripps, 2000). The other reaffirmation is from the European Court human rights, which points out that the freedom of expression forms an essential foundation for democratic societies. It further goes on to state that the right is among the basic conditions that are necessary for its development and that of human beings. The African Commission on Human and peoples’ rights points out that Article 9 is an indication that freedom of expression remains a basic human right. It further adds that the right is essential for personal development, individual political consciousness, and engaging in the performance of public affairs in the home country (Lewis, 2010). One notable fact is that freedom of expression is not complete, and there are limitations to it provided by every system of law. The Article 19(3) of the ICCPR stipulates that limitations to the right to freedom of expression should be on grounds of respect of the rights or status of others. The other provision is on the grounds of protecting the national security, maintaining public order or protecting public health. International assurances on the right to freedom of expression have several essential features. To begin with, opinions are completely protected by Article 19(1) of the ICCPR. This implies that it is allowed to think evil, but giving expressions on evil thoughts warrants a sanction (Beatson, & Cripps, 2000). The right to freedom of expression is for everyone. Therefore, it must be protected without any discrimination on the basis of gender, race, religion, color, language, political or factors that may lead to discrimination. The right also applies to ideas and information of any kind so long as the ideas or information may be communicated. The right also takes into consideration factually incorrect statements and opinions that seem to lack merit or offensive statements. Protection provided under the right to freedom of expression is far and wide depending on the way communication is disseminated. This fact is also considered when evaluating the legality of restrictions to freedom of expression (Alexander, 2005). Assurances provided under freedom of expression not only protect an individual’s right to give information, but also protects those seeking and receiving information. Freedom of expression is somehow negative in nature since it restricts a country’s ability to limit expression. Therefore, the right demands countries to acquire positive actions in order to gain protection. Countries may fall under positive obligations to undertake actions in order to prevent private bodies from interfering with the practice of freedom of expression by others. For this reason, international courts have always insisted that countries must investigate and prevent attacks by private bodies on the media (Cooray, 2002). It may also be necessary for countries to have positive measures in order to ensure that their actions play a role in the free flow of ideas and information within the society. This may require countries to introduce systems for licensing broadcasters. This move is essential in ensuring there is diversity and limits media concentration (Clayton & Tomlinson, 2001). Limits to freedom of expression Existing limits to freedom of expression are constructed proportionally from agreements on human rights designed by governments. Taking an example of the European Convention on human rights, Article 10 states that every person the right to freedom of expression (Cohen-Almagor, 2001). The right includes freedom to hold opinions, receive and give ideas and information without interference from the public authority. The Article goes further to state that the right does not prevent countries from issuing licenses on broadcasting, television or cinema businesses. Article warns that freedom of expression comes with great duties and responsibilities hence the need to have a number of restrictions, formalities, penalties or conditions. These requirements should be prescribed by law and are essential in democratic societies for the purpose of national security, public safety or territorial integrity. In addition, the requirements are essential in preventing crime, protecting human health, safeguarding the reputation of others, protecting confidential information, and maintaining the impartiality of the judiciary (Cohen-Almagor, 2001). The highlighted limitations may not be the only ones. States are usually keen on focusing on the key areas of interest when developing limits on the practice of freedom of expression. In most cases, States are much concerned with territorial integrity, national safety, and public safety when developing limits on freedom of expression. The establishment and definition of limits to freedom of expression is a risky affair. In case it is done in a hurry, it has the potential to undermine the whole structure. Article 29 of the universal declaration puts it clear that the highlighted limitations are present. The limits are expressed in terms of responsibilities to the community. In that way, their scope is restricted in general terms taking into account the respect for others (United Nations, 1947). Article 29 of the universal declaration of human rights provides that every person has a responsibility to the community where only the freedom and complete development of individual personality are possible. The article further points out that, in exercising individual rights and freedoms, every person remains subject to limitations already determined by law. The determination by law is for the purpose of gaining due recognition for the freedoms of others as well as attaining the desired morality, general welfare, and public order needed in a democratic society. Article 29 closes by saying that the stipulated rights and freedoms should be at no anytime be exercised against the will and principles of the United Nations (Hare & Weinstein, 2010). The contents of Article 29 raise concerns to the freedom of expression’s ability to become harmful to the interests of others and the common good. For this reason, concerned international courts have tried to create a balance between the right to freedom of expression and the desire to protect other rights (Gearon, 2006). According to European court of human rights, interferences are justifiable if they are prescribed by law; there is a legal aim, and if it is essential for a democratic society. In most instances, the court handles the question of being necessary. The question of necessity is linked to proportionality, which contains a number of elements. The main point of concern is whether the measure is appropriate in acquiring the suggested aim and whether there is a less intrusive and effective measure to get it (Woods, 2006). In this case, national courts are given the opportunity to decide if it is necessary to put limits on practicing freedom of expression. Therefore, it is a State responsibility to show that the limits to freedom of expression have attained the necessary requirements. However, international courts caution their member States that freedom of expression remains an essential element in the formation of democratic societies. Therefore, limits on freedom of expression should not only apply on information or ideas deemed harmful, but should also apply to those that cause shock and disturbance (Boaz, 2006). National security and freedom of expression When it comes to matters of national security, all the agreements about human rights allow for limitations on the freedom of expression. It is worth noting that in nearly all States where there is protection of freedom of information, national security remains the only legal factor that warrants limitations on freedom of expression. For a long time, national security has been a central point of discussion around the world after September 9 terror attack in New York. This attack and many more that followed later have made States review their anti-terror laws, which led to the introduction of some restrictions on freedom of expression. The press has been the most affected sector by the limitations to freedom of expression (Hare & Weinstein, 2010). One explanation as to why the press is a major target by the limitations to freedom of expression is that today’s terror activities are meant to cause indirect damage. This is through spreading of fear in order to make people feel unsafe as well as to gain media attention. Without extensive media attention, impacts of terrorism would be less on a global scale. This example provides some the grounds that would necessitate limitations on what is broadcasted by media operators. Guidelines from the Council of Europe on protecting freedom of expression and information when there is crisis require media professionals to act professionally. In times of crisis, media professionals should adhere and uphold ethical standards in their duties. They should also report on facts and comprehensive information and at the same time pay attention to the rights of other people (McLeod, 2005). It is also the responsibility of member States not to restrict the public from accessing information when there is a crisis. At the same time, States should not use unclear statements when issuing restrictions on the freedom of expression when there is a crisis. Of most importance is a balance between national security and freedom of expression. This due to the fact that the two are vital in a democratic society and it is the responsibility of each State to achieve it using the laid down principles and guidelines (Gearon, 2006). References Alexander, L. (2005). Is There a Right of Freedom of Expression? Cambridge: Cambridge University Press. Beatson, J. & Cripps, Y. (2000) .‘Freedom of Expression and Freedom of Information.’ Oxford: Oxford University press. Boaz, J. (2006). Free speech. Chicago: Greenhaven Press. Clayton, R. & Tomlinson, H. (2001). Privacy and Freedom of Expression. Oxford: Oxford University Press. Cohen-Almagor, R. (2001). Speech, Media and Ethics: The Limits of Free Expression: Critical Studies on Freedom of Expression, Freedom of the Press and the Public's Right to Know. London: Palgrave Macmillan. Cooray, M (2002). ‘The Importance of Freedom of Expression.’ Retrieved From: http://www.ourcivilisation.com/cooray/btof/chap211.htm Gearon, L. (2006). Freedom of Expression and Human Rights. Brighton: Sussex Academic Press Ivan Hare, I. & Weinstein, J. (2010). Extreme Speech and Democracy. Oxford: Oxford University Press. Lewis, A. (2010). Freedom for the Thought That We Hate: A Biography of the First Amendment. New York: Basic Books. Magee, J. J. (2002). Freedom of Expression. New York: Greenwood Publishing Group. McLeod, K. (2005). Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property. Minnesota: University of Minnesota Press. Trager, R. & Dickerson, D. L. (1999). Freedom of Expression in the 21st Century. London: Pine Forge Press. United Nations (1947). Universal Declaration of Human Rights. Retrieved From: http://www.unhcr.ch/udhr/lang/eng.htm Woods, L. (2006). ‘Freedom of Expression in the European Union.’ New York: 12 EPL 371, 401 Zeno-Zencovich, V. (2008). Freedom of Expression: A critical and comparative analysis. Chicago: Taylor & Francis. Read More