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

Fri Dec 4 13:42:54 EET 2009

Hello again! 

Regarding what institutions can actually do with cases of violations of 
freedom of expression on the Internet, OHCHR can act via the following: 

1. The SR on freedom of expression sends an urgent appeal to the State 
concerned - we receive dozens of information from victims and NGOs on a 
daily basis and send out such communications to the Government when 
violations occur (arrest/detention of bloggers, imprisonment of persons 
who post their views online, etc). We send the facts of the case to the 
Gvmt, remind them of their obligations under international human rights 
law, and ask them to clarify how actions taken are in conformity with 
their obligations. We publish all this information in the annual report, 
which also includes whether the gvmt has responded to our allegations or 
not (which can also be used as advocacy tools by civil society to "shame" 
the Gvmt if they have not responded). From 2010, we will be publishing our 
communciations report three times a year, rather than just once a year as 
it currently is, with access to the full letters received from Gvmts. 

See for example the communications that we sent last year (it's over 480 
pages long!) - which includes many cases of bloggers, closure of websites, 
etc. 
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/136/52/PDF/G0913652.pdf?OpenElement

2. The UN Human Rights Committee, which is a body composed of independent 
experts acting in a more "quasi-judicial" capacity, undertakes a review of 
States parties to the International Covenant on Civil and Political Rights 
(they are known as "treaty bodies"). They examine how Governments have 
implemented their obligations under this treaty, which covers everything 
from arbitrary detention, disappearances, torture  to of course freedom of 
expression - and makes concrete recommendations to reform State 
policies/laws etc. However, this is a more lengthy process and is aimed at 
long term policy changes rather than seeking for immediate protection - 
which is more the role of the SR. 

3. The Universal Periodic Review, which is a body established by the Human 
Rights Council, also undertakes a review of States' fulfilment of their 
human rights obligations, which can also include concerns regarding 
freedom of expression online - for example the review that will be 
undertaken for Iran in February 2010 would be interesting: 
http://www.ohchr.org/EN/HRBodies/UPR/PAGES/IRSession7.aspx (after the 
review in the February session, the Working Group will adopt a set of 
recommendations)

You can find more about these mechanisms and how they differ through our 
Civil Society Handbook - 
http://www.ohchr.org/EN/AboutUs/CivilSociety/Documents/Handbook_en.pdf

Am in a bit of a rush now, but can send more specific information in due 
course! 

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> 
04/12/2009 12:25

To
Momoko Nomura <MNomura at ohchr.org>
cc
expression <expression at ipjustice.org>, irp 
<Irp at lists.internetrightsandprinciples.org>, irp-bounces 
<irp-bounces at lists.internetrightsandprinciples.org>, "maja.rakovic" 
<maja.rakovic at kultura.gov.rs>
Subject
Re: [IRP] good practice to define limits of freedom of expression

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 
ending.

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?

Best
Max

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) 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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