[IRP] good practice to define limits of freedom of expression

[Momoko Nomura]

Dear Max, 

It was a pleasure to meet you during the IGF meeting and I hope that you 
are doing well back in Germany! 

As you may know, the limitations that are permissible to the right to 
freedom of expression under international human rights law is defined in 
articles 19(3) and 20 of the International Covenant on Civil and Political 
Rights (http://www2.ohchr.org/english/law/ccpr.htm): 

Article 19

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right 
shall include freedom to seek, receive and impart information and ideas of 
all kinds, regardless of frontiers, either orally, in writing or in print, 
in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article 
carries with it special duties and responsibilities. It may therefore be 
subject to certain restrictions, but these shall only be such as are 
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre 
public), or of public health or morals.
Article 20 
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes 
incitement to discrimination, hostility or violence shall be prohibited by 
law.


The difference between articles 19(3) and 20 is that States actually have 
a legal OBLIGATION to prohibit forms of expression in the latter (e.g. 
incitement to commit genocide), while limitations on the basis of 
art.19(3) must be seen as an exception and requires justification by the 
State. 

OHCHR held a seminar regarding limitations to freedom of expression in 
October last year, and the joint statement delievered by the SRs on 
freedom of expression, racisim and religion may be of interest to you: 
http://www2.ohchr.org/english/issues/opinion/docs/SRJointstatement22April09New.pdf

Based on international and regional jurisprudence, any limitations based 
on art.19(3) must fulfil three criteria: (1) that it is provided for by 
law; (2) it is necessary for the purposes listed in para.3; and (3) 
proportionate to the aim it claims to achieve by limiting freedom of 
expression. 

The Johannesburg Principles on National Security, Freedom of Expression 
and Access to Information, which has been endorsed by the SR on freedom of 
expression, also contains principles with regard to limitations on the 
grounds of national security 
(http://www.article19.org/pdfs/standards/joburgprinciples.pdf)

Kind regards, 

Momoko

---------------------------------------------
Momoko Nomura (Ms.)
Associate Human Rights Officer 
Mandate of the Special Rapporteur on the right to freedom of opinion and 
expression 
Special Procedures Division
United Nations Office of the High Commissioner for Human Rights
Tel: 41 22 917 9304
Fax: 41 22 917 9006
E-mail: mnomura at ohchr.org




Max Senges <maxsenges at gmail.com> 
Sent by: irp-bounces at lists.internetrightsandprinciples.org
04/12/2009 11:53

To
expression <expression at ipjustice.org>, irp 
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Subject
[IRP] good practice to define limits of freedom of expression






Hi there

As many of you know Germany has decided to limit free expression in some 
specific cases and installed practices and institutions that prescribe age 
classification and "illegal content" etc.. There is an ongoing discourse 
and about the categories and their scope etc.. E.g. what an  
"unconstitutional organization" or "racial demagoguery" is.

There is a whole ecosystem of public and semi-public institutions that 
deal with these definitions and whether e.g. the German Nationalist Party 
(NPD) is unconstitutional or not... the Federal Review Board for Media 
Harmful to Young Persons (Bundespr?fstelle f?r jugendgef?hrdende Medien, 
BPjM) creates an index (a.k.a. black-list) of content that is not to be 
distributed (or in some cases even confiscated). The Wikipedia article 
sums up the work of the BPjM quite nicely (esp. the indexing process).

Do you know about other good practices? Would it make sense to have a body 
like the BPjM on a global level?

Best
Max_______________________________________________
IRP mailing list
IRP at lists.internetrightsandprinciples.org
http://lists.internetrightsandprinciples.org/listinfo.cgi/irp-internetrightsandprinciples.org


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