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

Max Senges maxsenges
Fri Dec 4 13:25:28 EET 2009

hi momoko, really good reading you! I was planning/hoping/trying to write to
you and Frank but the stream of daily urgent things seems to be never

Thanks for pointing us to the mothership! Of course this is what FoE
governance setups/practices should be based on. The 1Mio$$$ question is what
institutions can do the actual work of dealing with the many many cases that
happen on a daily basis on the internet?


On Fri, Dec 4, 2009 at 12:10 PM, Momoko Nomura <MNomura at ohchr.org> wrote:

> 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 <
> Irp at lists.internetrightsandprinciples.org>
> cc
>   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)*<http://www.google.com/url?q=http%3A%2F%2Fwww.bundespruefstelle.de%2Fbpjm%2Finformation-in-english.html&sa=D&sntz=1&usg=AFrqEzcpCZ28Q_8ktKznQX__gWFrw8KQDg>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*<http://www.google.com/url?q=http%3A%2F%2Fen.wikipedia.org%2Fwiki%2FBundespr%25C3%25BCfstelle_f%25C3%25BCr_jugendgef%25C3%25A4hrdende_Medien%23The_indexing_process&sa=D&sntz=1&usg=AFrqEzfoF67qXXUbBzj1-BewYSUG8KxWEQ>
> ).
> 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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