January
2, 2013
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An Introduction by Gabi Weber and Gilad Atzmon
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UN Human Rights Committee, July 2011:
General Comment on Article 19
General Comment on Article 19
~ Freedoms of Opinion and Expression
Just a few days ago we came across the following from the UN
Human Rights Committee ~ an independent body tasked with supervising compliance
with the International Covenant on Civil and
Political Rights (ICCPR).
The document, from the Office of the High Commissioner for Human
Rights (OCHR), dates from July 2011 and concerns
freedom of opinion and expression. It states that
"anti-blasphemy laws and restrictions on criticism of governments are incompatible with existing norms and that free expression is essential for the protection of human rights."
This report, entitled General Comment, is an
interpretation of the 1966 International Covenant on Civil and Political Rights
(ICCPR) ~ a covenant with 167 state signatories, signed and ratified also by
Germany, France, Switzerland and other European countries.
Crucial to the committee´s comments are the so-called “memory laws,” which it defined as "laws that penalize the expression of opinions about historical facts” and sees these laws as “incompatible with the obligations that the covenant imposes on States parties in relation to the respect for freedom of opinion and expression.” and goes on to say that,“Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights”.
In spite of the significance of this document, it
was not reported by any media outlet.
Reading it makes it abundantly clear that governments and political organizations that prohibit the elementary right to present alternative historical accounts are in clear violation of the United Nations’ position on freedom of opinion and expression.This obviously applies to Germany, France and Austria but it also applies to many 'progressive' organizations (Jewish and Non-Jewish) and individuals that are engaged in relentless harassment campaigns against dissent voices within the (Jewish and Non-Jewish) communities and beyond.
The document states clearly that
It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1.", and in the footnotes are references to many relevant cases.
Think about it.
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.
GE.11-45331
Human Rights Committee
102nd session
Geneva, 11-29 July 2011
General comment No. 34
Human Rights Committee
102nd session
Geneva, 11-29 July 2011
General comment No. 34
Article 19: Freedoms of opinion and expression
GENERAL REMARKS
1. This general comment replaces general comment No. 10 (nineteenth session).
2. Freedom of opinion and freedom of expression are
indispensable conditions for the full development of the person. They are
essential for any society. (1)
They constitute the foundation stone for every free and
democratic society. The two freedoms are closely related, with freedom of
expression providing the vehicle for the exchange and development of opinions.
3. Freedom of expression is a necessary condition for the
realization of the principles of transparency and accountability that are, in
turn, essential for the promotion and protection of human rights.
4. Among the other articles that contain guarantees for
freedom of opinion and/or expression, are articles 18, 17, 25 and 27. The freedoms of
opinion and expression form a basis for the full enjoyment of a wide range of
other human rights. For instance, freedom of expression is integral to the
enjoyment of the rights to freedom of assembly and association, and the
exercise of the right to vote.
5. Taking account of the specific terms of article 19,
paragraph 1, as well as the relationship of opinion and thought (article 18), a
reservation to paragraph 1 would be incompatible with the object and purpose of
the Covenant.(2)
Furthermore, although freedom of opinion is not listed among
those rights that may not be derogated from pursuant to the provisions of
article 4 of the Covenant, it is recalled that, “in those provisions of the Covenant
that are not listed in article 4, paragraph 2, there are elements that in the Committee’s
opinion cannot be made subject to lawful derogation under article 4”. (3)
Freedom of opinion is one such element, since it can never
become necessary to derogate from it during a state of emergency. (4)
6. Taking account of the relationship of freedom of expression
to the other rights in the Covenant, while reservations to particular elements
of article 19, paragraph 2, may be acceptable, a general reservation to the
rights set out in paragraph 2 would be incompatible with the object and purpose
of the Covenant.(5)
7. The obligation to respect freedoms of opinion and
expression is binding on every State party as a whole. All branches of the
State (executive, legislative and judicial) and other public or governmental
authorities, at whatever level ~ national, regional or local ~ are in a
position to engage the responsibility of the State party. (6)
Such responsibility may also be incurred by a State party
under some circumstances in respect of acts of semi-State entities. (7)
The obligation also requires States parties to ensure that
persons are protected from any acts by private persons or entities that would
impair the enjoyment of the freedoms of opinion and expression to the extent that
these Covenant rights are amenable to application between private persons or
entities.(8)
8. States parties are required to ensure that the rights
contained in article 19 of the Covenant are given effect to in the domestic law
of the State, in a manner consistent with the guidance provided by the
Committee in its general comment No. 31 on the nature of the general legal
obligation imposed on States parties to the Covenant.
It is recalled that States parties should provide the
Committee, in accordance with reports submitted pursuant to article 40, with
the relevant domestic legal rules, administrative practices and judicial decisions,
as well as relevant policy level and other sectorial practices relating to the
rights protected by article 19, taking into account the issues discussed in the
present general comment. They should also include information on remedies
available if those rights are violated.
Freedom of opinion
9. Paragraph 1 of article 19 requires protection of the right
to hold opinions without interference. This is a right to which the Covenant
permits no exception or restriction. Freedom of opinion extends to the right to
change an opinion whenever and for whatever reason a person so freely chooses.
No person may be subject to the impairment of any rights under the Covenant on
the basis of his or her actual, perceived or supposed opinions. All forms of
opinion are protected, including opinions of a political, scientific, historic,
moral or religious nature. It is incompatible with paragraph 1 to criminalize
the holding of an opinion. (9)
The harassment, intimidation or stigmatization of a person,
including arrest, detention, trial or imprisonment for reasons of the opinions
they may hold, constitutes a
violation of article 19, paragraph 1. (10)
violation of article 19, paragraph 1. (10)
10. Any form of effort to coerce the holding or not holding of
any opinion is prohibited. (11)
Freedom to express one’s opinion necessarily includes
freedom not to express one’s opinion.
Freedom of expression
11. Paragraph 2 requires States parties to guarantee the
right to freedom of expression, including the right to seek, receive and impart
information and ideas of all kinds regardless of frontiers.
This right includes the expression and receipt of
communications of every form of idea and opinion capable of transmission to
others, subject to the provisions in article 19, paragraph 3, and article 20. (12)
It includes political discourse, (13)
commentary on one’s own (14) and on public
affairs, (15) canvassing, (16) discussion of human rights, (17) journalism, (18)
cultural and artistic expression, (19)
teaching, (20) and religious discourse. (21)
It may also include commercial advertising. The scope of
paragraph 2 embraces even expression that may be regarded as deeply offensive, (22) although such expression may be restricted in
accordance with the provisions of article 19, paragraph 3 and article 20.
12. Paragraph 2 protects all forms of expression and the means
of their dissemination. Such forms include spoken, written and sign language and
such non-verbal expression as images and objects of art. (23)
Means of expression include books, newspapers, (24) pamphlets, (25)
posters, banners, (26) dress and legal
submissions. (27)
They include all forms of audio-visual as well as electronic
and internet-based modes of expression.
Freedom of expression and the media
13. A free, uncensored and unhindered press or other media is
essential in any society to ensure freedom of opinion and expression and the
enjoyment of other Covenant rights. It constitutes one of the cornerstones of a
democratic society. (28)
The Covenant embraces a right whereby the media may receive
information on the basis of which it can carry out its function. (29)
The free communication of information and ideas about public
and political issues between citizens, candidates and elected representatives
is essential. This implies a free press and other media able to comment on
public issues without censorship or restraint
and to inform public opinion. (30)
The public also has a corresponding right to receive media output.
(31)
14. As a means to protect the rights of media users, including
members of ethnic and linguistic minorities, to receive a wide range of
information and ideas, States parties should take particular care to encourage
an independent and diverse media.
15. States parties should take account of the extent to which
developments in information and communication technologies, such as internet
and mobile based electronic information dissemination systems, have
substantially changed communication practices around the world. There is now a
global network for exchanging ideas and opinions that does not necessarily rely
on the traditional mass media intermediaries. States parties should take all
necessary steps to foster the independence of these new media and to ensure
access of individuals thereto.
16. States parties should ensure that public broadcasting
services operate in an independent manner. (32)
In this regard, States parties should guarantee their independence
and editorial freedom. They should provide funding in a manner that does not
undermine their independence.
17. Issues concerning the media are discussed further in the
section of this general comment that addresses restrictions on freedom of expression.
Right of access to information
18. Article 19, paragraph 2 embraces a right of access to
information held by public bodies. Such information includes records held by a
public body, regardless of the form in which the information is stored, its
source and the date of production. Public bodies are as indicated in paragraph
7 of this general comment. The designation of such bodies may also include
other entities when such entities are carrying out public functions. As has already
been noted, taken together with article 25 of the Covenant, the right of access
to information includes a right whereby the media has access to information on
public affairs (33) and the right of the
general public to receive media output. (34)
Elements of the right of access to information are also
addressed elsewhere in the Covenant. As the Committee observed in its general
comment No. 16, regarding article 17 of the Covenant, every individual should
have the right to ascertain in an intelligible form, whether, and if so, what
personal data is stored in automatic data files, and for what purposes. Every
individual should also be able to ascertain which public authorities or private
individuals or bodies control or may control his or her files. If such files
contain incorrect personal data or have been collected or processed contrary to
the provisions of the law, every individual should have the right to have his
or her records rectified. Pursuant to article 10 of the Covenant, a prisoner
does not lose the entitlement to access to his medical records. (35)
The Committee, in general comment No. 32 on article 14, set
out the various entitlements to information that are held by those accused of a
criminal offence. (36)
Pursuant to the provisions of article 2, persons should be in
receipt of information regarding their Covenant rights in general. (37) Under article 27, a State party’s
decision-making that may substantively compromise the way of life and culture
of a minority group should be undertaken in a process of information-sharing
and consultation with affected communities. (38)
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19. To give effect to the right of access to information,
States parties should proactively put in the public domain Government
information of public interest. States parties should make every effort to
ensure easy, prompt, effective and practical access to such information. States
parties should also enact the necessary procedures, whereby one may gain access
to information, such as by means of freedom of information legislation. (39)
The procedures should provide for the timely processing of
requests for information according to clear rules that are compatible with the
Covenant. Fees for requests for information should not be such as to constitute
an unreasonable impediment to access to information. Authorities should provide
reasons for any refusal to provide access to information. Arrangements should
be put in place for appeals from refusals to provide access to information as
well as in cases of failure to respond to requests.
Freedom of expression and political rights
20. The Committee, in general comment No. 25 on participation in
public affairs and the right to vote, elaborated on the importance of freedom
of expression for the conduct of public affairs and the effective exercise of
the right to vote. The free communication of information and ideas about public
and political issues between citizens, candidates and elected representatives
is essential. This implies a free press and other media able to comment on
public issues and to inform public opinion without censorship or restraint. (40)
The attention of States parties is drawn to the guidance that general comment No. 25 provides with regard to the promotion and the protection of freedom of expression in that context.
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The application of article 19 (3)
21. Paragraph 3 expressly states that the exercise of the right
to freedom of expression carries with it special duties and responsibilities.
For this reason two limitative areas of restrictions on the right are
permitted, which may relate either to respect of the rights or reputations of
others or to the protection of national security or of public order (ordre public)
or of public health or morals. However, when a State party imposes restrictions
on the exercise of freedom of expression, these may not put in jeopardy the
right itself. The Committee recalls that the relation between right and
restriction and between norm and exception must not be reversed. (41)
The Committee also recalls the provisions of article 5, paragraph
1, of the Covenant according to which “nothing in the present Covenant may be interpreted
as implying for any State, group or person any right to engage in any activity
or perform any act aimed at the destruction of any of the rights and freedoms
recognized herein or at their limitation to a greater extent than is provided
for in the present Covenant”.
22. Paragraph 3 lays down specific conditions and it is only
subject to these conditions that restrictions may be imposed: the restrictions
must be “provided by law”; they may only be imposed for one of the grounds set
out in sub-paragraphs (a) and (b) of paragraph 3; and they must conform to the
strict tests of necessity and proportionality. (42)
Restrictions are not allowed on grounds not specified in
paragraph 3, even if such grounds would justify restrictions to other rights
protected in the Covenant. Restrictions must be applied only for those purposes
for which they were prescribed and must be directly related to the specific need
on which they are predicated. (43)
23. States parties should put in place effective measures to
protect against attacks aimed at silencing those exercising their right to
freedom of expression. Paragraph 3 may never be invoked as a justification for
the muzzling of any advocacy of multi-party democracy, democratic tenets and
human rights (44).
Nor, under any circumstance, can an attack on a person,
because of the exercise of his or her freedom of opinion or expression,
including such forms of attack as arbitrary arrest, torture, threats to life
and killing, be compatible with article 19. (45)
Journalists are frequently subjected to such threats,
intimidation and attacks because of their activities. (46)
So too are persons who engage in the gathering and analysis
of information on the human rights situation and who publish human
rights-related reports, including judges and lawyers. (47)
All such attacks should be vigorously investigated in a
timely fashion, and the perpetrators prosecuted, (48)
and the victims, or, in the case of killings, their representatives, be in
receipt of appropriate forms of redress. (49)
24. Restrictions must be provided by law. Law may include laws
of parliamentary privilege (50) and laws of
contempt of court. (51)
Since any restriction on freedom of expression constitutes a serious curtailment of human rights, it is not compatible with
the Covenant for a restriction to be enshrined in traditional, religious or other such customary
law. (52)
25. For the purposes of paragraph 3, a norm, to be characterized
as a “law”, must be formulated with sufficient precision to enable an
individual to regulate his or her conduct accordingly (53)
and it must be made accessible to the public. A law may not confer unfettered discretion
for the restriction of freedom of expression on those charged with its
execution. (54)
Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.
26. Laws restricting the rights enumerated in article 19,
paragraph 2, including the laws referred to in paragraph 24, must not only
comply with the strict requirements of article 19, paragraph 3 of the Covenant
but must also themselves be compatible with the provisions, aims and objectives
of the Covenant. (55)
Laws must not violate the non-discrimination provisions of
the Covenant. Laws must not provide for penalties that are incompatible with the
Covenant, such as corporal punishment. (56)
27. It is for the State party to demonstrate the legal
basis for any restrictions imposed on freedom of expression. (57)
If, with regard to a particular State party, the Committee
has to consider whether a particular restriction is imposed by law, the State
party should provide details of the law and of actions that fall within the
scope of the law. (58)
28. The first of the legitimate grounds for restriction listed
in paragraph 3 is that of respect for the rights or reputations of others. The
term “rights” includes human rights as recognized in the Covenant and more
generally in international human rights law. For example, it may be legitimate
to restrict freedom of expression in order to protect the right to vote under
article 25, as well as rights article under 17 (see para. 37).(59) Such
restrictions must be constructed with care: while it may be permissible to
protect voters from forms of expression that constitute intimidation or
coercion, such restrictions must not impede political debate, including, for
example, calls for the boycotting of a non-compulsory vote. (60)
The term “others” relates to other persons individually or
as members of a community. (61)
Thus, it may, for instance, refer to individual members of a
community defined by its religious faith (62)
or ethnicity. (63)
29. The second legitimate ground is that of protection of
national security or of public order (ordre public), or of public health or
morals.
30. Extreme care must be taken by States parties to ensure that
treason laws (64) and similar provisions
relating to national security, whether described as official secrets or sedition
laws or otherwise, are crafted and applied in a manner that conforms to the
strict requirements of paragraph 3. It is not compatible with paragraph 3, for
instance, to invoke such laws to suppress or withhold from the public
information of legitimate public interest that does not harm national security
or to prosecute journalists, researchers, environmental activists, human rights
defenders, or others, for having disseminated such information. (65)
Nor is it generally appropriate to include in the remit of such laws such categories of information as those relating to the commercial sector, banking and scientific progress. (66)
The Committee has found in one case that a restriction on the issuing of a statement in support of a labour dispute, including for the convening of a national strike, was not permissible on the grounds of national security. (67)
31. On the basis of maintenance of public order (ordre public)
it may, for instance, be permissible in certain circumstances to regulate
speech-making in a particular public place. (68)
Contempt of court proceedings relating to forms of
expression may be tested against the public order (ordre public) ground. In
order to comply with paragraph 3, such proceedings and the penalty imposed must
be shown to be warranted in the exercise of a court’s power to maintain orderly
proceedings. (69)
Such proceedings should not in any way be used to restrict
the legitimate exercise of defence rights.
32. The Committee observed in general comment No. 22, that “the
concept of morals derives from many social, philosophical and religious
traditions; consequently, limitations… for the purpose of protecting morals
must be based on principles not deriving exclusively from a single tradition”.
Any such limitations must be understood in the light of universality of human
rights and the principle of non-discrimination
33. Restrictions must be “necessary” for a legitimate purpose.
Thus, for instance, a prohibition on commercial advertising in one language,
with a view to protecting the language of a particular community, violates the
test of necessity if the protection could be achieved in other ways that do not
restrict freedom of expression. (70)
On the other hand, the Committee has considered that a State
party complied with the test of necessity when it transferred a teacher who had
published materials that expressed hostility toward a religious community to a
non-teaching position in order to protect the right and freedom of children of
that faith in a school district. (71)
34. Restrictions must not be overbroad. The Committee observed
in general comment No. 27 that “restrictive measures must conform to the
principle of proportionality; they must be appropriate to achieve their
protective function; they must be the least intrusive instrument amongst those
which might achieve their protective function; they must be proportionate to
the interest to be protected…The principle of proportionality has to be respected
not only in the law that frames the restrictions but also by the administrative
and judicial authorities in applying the law”. (72)
The principle of proportionality must also take account of
the form of expression at issue as well as the means of its dissemination. For instance,
the value placed by the Covenant upon uninhibited expression is particularly
high in the circumstances of public debate in a democratic society concerning
figures in the public and political domain. (73)
35. When a State party invokes a legitimate ground for
restriction of freedom of expression, it must demonstrate in specific and
individualized fashion the precise nature of the threat, and the necessity and
proportionality of the specific action taken, in particular by establishing a
direct and immediate connection between the expression and the threat. (74)
36. The Committee reserves to itself an assessment of whether,
in a given situation, there may have been circumstances which made a
restriction of freedom of expression necessary. (75)
In this regard, the Committee recalls that the scope of this
freedom is not to be assessed by reference to a “margin of appreciation” (76) and in order for the Committee to carry out
this function, a State party, in any given case, must demonstrate in specific fashion
the precise nature of the threat to any of the enumerated grounds listed in
paragraph 3 that has caused it to restrict freedom of expression. (77)
Limitative scope of restrictions on freedom of expression in certain specific areas
37. Among restrictions on political discourse that have given
the Committee cause for concern are the prohibition of door-to-door canvassing,
(78) restrictions on the number and type of
written materials that may be distributed during election campaigns, (79) blocking access during election periods to
sources, including local and international media, of political commentary, (80) and limiting access of opposition parties and
politicians to media outlets. (81)
Every restriction should be compatible with paragraph 3.
However, it may be legitimate for a State party to restrict political polling
imminently preceding an election in order to maintain the integrity of the
electoral process. (82)
38. As noted earlier in paragraphs 13 and 20, concerning the
content of political discourse, the Committee has observed that in
circumstances of public debate concerning public figures in the political
domain and public institutions, the value placed by the Covenant upon
uninhibited expression is particularly high. (83)
Thus, the mere fact that forms of expression are considered
to be insulting to a public figure is not sufficient to justify the imposition
of penalties, albeit public figures may also benefit from the provisions of the
Covenant. (84)
Moreover, all public figures, including those exercising the
highest political authority such as heads of state and government, are
legitimately subject to criticism and political opposition. (85)
Accordingly, the Committee expresses concern regarding laws
on such matters as, lese majesty, (86)
desacato, (87) disrespect for authority, (88) disrespect for flags and symbols, defamation
of the head of state (89) and the protection
of the honour of public officials, (90) and
laws should not provide for more severe penalties solely on the basis of the identity
of the person that may have been impugned. States parties should not prohibit criticism
of institutions, such as the army or the administration. (91)
39. States parties should ensure that legislative and
administrative frameworks for the regulation of the mass media are consistent
with the provisions of paragraph 3. (92)
Regulatory systems should take into account the differences
between the print and broadcast sectors and the internet, while also noting the
manner in which various media converge. It is incompatible with article 19 to
refuse to permit the publication of newspapers and other print media other than
in the specific circumstances of the application of paragraph 3. Such circumstances
may never include a ban on a particular publication unless specific content, that
is not severable, can be legitimately prohibited under paragraph 3. States
parties must avoid imposing onerous licensing conditions and fees on the
broadcast media, including on community and commercial stations. (93)
The criteria for the application of such conditions and licence
fees should be reasonable and objective, (94)
clear, (95) transparent, (96) nondiscriminatory and otherwise in compliance
with the Covenant. (97)
Licensing regimes for broadcasting via media with limited
capacity, such as audiovisual terrestrial and satellite services should provide
for an equitable allocation of access and frequencies between public,
commercial and community broadcasters. It is recommended that States parties
that have not already done so should establish an independent and public broadcasting
licensing authority, with the power to examine broadcasting applications and to
grant licenses. (98)
40. The Committee reiterates its observation in general comment
No. 10 that “because of the development of modern mass media, effective
measures are necessary to prevent such control of the media as would interfere
with the right of everyone to freedom of expression”. The State should not have
monopoly control over the media and should promote plurality of the media. (99)
Consequently, States parties should take appropriate action,
consistent with the Covenant, to prevent undue media dominance or concentration
by privately controlled media groups in monopolistic situations that may be
harmful to a diversity of sources and views.
41. Care must be taken to ensure that systems of government
subsidy to media outlets and the placing of government advertisements (100) are not employed to the effect of impeding freedom
of expression. (101)
Furthermore, private media must not be put at a disadvantage
compared to public media in such matters as access to means of
dissemination/distribution and access to news. (102)
42. The penalization of a media outlet, publishers or
journalist solely for being critical of the government or the political social
system espoused by the government (103) can
never be considered to be a necessary restriction of freedom of expression.
43. Any restrictions on the operation of websites, blogs or any
other internet-based, electronic or other such information dissemination
system, including systems to support such communication, such as internet
service providers or search engines, are only permissible to the extent that
they are compatible with paragraph 3. Permissible restrictions generally should
be content-specific; generic bans on the operation of certain sites and systems
are not compatible with paragraph 3. It is also inconsistent with paragraph 3
to prohibit a site or an information dissemination system from publishing
material solely on the basis that it may be critical of the government or the
political social system espoused by the government. (104)
44. Journalism is a function shared by a wide range of actors,
including professional full-time reporters and analysts, as well as bloggers
and others who engage in forms of self publication in print, on the internet or
elsewhere, and general State systems of registration or licensing of
journalists are incompatible with paragraph 3. Limited accreditation schemes
are permissible only where necessary to provide journalists with privileged
access to certain places and/or events. Such schemes should be applied in a
manner that is nondiscriminatory and compatible with article 19 and other
provisions of the Covenant, based on objective criteria and taking into account
that journalism is a function shared by a wide range of actors.
45. It is normally incompatible with paragraph 3 to restrict
the freedom of journalists and others who seek to exercise their freedom of
expression (such as persons who wish to travel to human rights-related meetings)
(105) to travel outside the State party, to
restrict the entry into the State party of foreign journalists to those from
specified countries (106) or to restrict
freedom of movement of journalists and human rights investigators within the
State party (including to conflict-affected locations, the sites of natural
disasters and locations where there are allegations of human rights abuses).
States parties should recognize and respect that element of the right of
freedom of expression that embraces the limited journalistic privilege not to
disclose information sources. (107)
46. States parties should ensure that counter-terrorism
measures are compatible with paragraph 3. Such offences as “encouragement of
terrorism” (108) and “extremist activity” (109) as well as offences of “praising”,
“glorifying”, or “justifying” terrorism, should be clearly defined to ensure
that they do not lead to unnecessary or disproportionate interference with freedom
of expression. Excessive restrictions on access to information must also be avoided.
The media plays a crucial role in informing the public about acts of terrorism
and its capacity to operate should not be unduly restricted. In this regard,
journalists should not be penalized for carrying out their legitimate activities.
47. Defamation laws must be crafted with care to ensure that
they comply with paragraph 3, and that they do not serve, in practice, to
stifle freedom of expression. (110)
All such laws, in particular penal defamation laws, should
include such defences as the defence of truth and they should not be applied
with regard to those forms of expression that are not, of their nature, subject
to verification. At least with regard to comments about public figures,
consideration should be given to avoiding penalizing or otherwise rendering unlawful
untrue statements that have been published in error but without malice. (111)
In any event, a public interest in the subject matter of the
criticism should be recognized as a defence. Care should be taken by States
parties to avoid excessively punitive measures and penalties. Where relevant,
States parties should place reasonable limits on the requirement for a
defendant to reimburse the expenses of the successful party. (112)
States parties should consider the decriminalization of
defamation (113) and, in any case, the
application of the criminal law should only be countenanced in the most serious
of cases and imprisonment is never an appropriate penalty. It is impermissible
for a State party to indict a person for criminal defamation but then not to
proceed to trial expeditiously ~ such a practice has a chilling effect that may
unduly restrict the exercise of freedom of expression of the person concerned
and others. (114)
48. Prohibitions of displays of lack of respect for a religion
or other belief system, including blasphemy laws, are incompatible with the
Covenant, except in the specific circumstances envisaged in article 20,
paragraph 2, of the Covenant. Such prohibitions must also comply with the
strict requirements of article 19, paragraph 3, as well as such articles as 2,
5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such
laws to discriminate in favour of or against one or certain religions or belief
systems, or their adherents over another or religious believers over
non-believers. Nor would it be permissible for such prohibitions to be used to
prevent or punish criticism of religious leaders or commentary on religious
doctrine and tenets of faith. (115)
49. Laws that penalize the expression of opinions about
historical facts are incompatible with the obligations that the Covenant
imposes on States parties in relation to the respect for freedom of opinion and
expression. (116)
The Covenant does not permit general prohibition of expressions
of an erroneous opinion or an incorrect interpretation of past events.
Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.
Restrictions on the right of freedom of opinion should never be imposed and, with regard to freedom of expression, they should not go beyond what is permitted in paragraph 3 or required under article 20.
The relationship between articles 19 and 20
50. Articles 19 and 20 are compatible with and complement each
other. The acts that are addressed in article 20 are all subject to restriction
pursuant to article 19, paragraph 3. As such, a limitation that is justified on
the basis of article 20 must also comply with article 19, paragraph 3. (117)
51. What distinguishes the acts addressed in article 20 from
other acts that may be subject to restriction under article 19, paragraph 3, is
that for the acts addressed in article 20, the Covenant indicates the specific
response required from the State: their prohibition by law. It is only to this
extent that article 20 may be considered as lex specialis with regard to
article 19.
52. It is only with regard to the specific forms of expression
indicated in article 20 that States parties are obliged to have legal
prohibitions. In every case in which the State restricts freedom of expression
it is necessary to justify the prohibitions and their provisions in strict
conformity with article 19.
NOTES:
(1) See communication No. 1173/2003, Benhadj v. Algeria, Views
adopted on 20 July 2007; No. 628/1995, Park v. Republic of Korea, Views adopted
on 5 July 1996.
(2) See the Committee’s general comment No. 24 (1994) on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to the declarations under article 41 of the Covenant, Official Records of the General Assembly, Fiftieth Session, Supplement No. 40, vol. I (A/50/40 (Vol. I)), annex V.
(3) See the Committee’s general comment No. 29 (2001) on
derogation during a state of emergency, para. 13, Official Records of the
General Assembly, Fifty-sixth Session, Supplement No. 40, vol. I (A/56/40 (Vol.
I)), annex VI.
(4) General comment No. 29, para. 11.
(5) General comment No. 24.
(6) See the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 4, Official Records of the General Assembly, Fifty ninth Session, Supplement No. 40, vol. I (A/59/40 (Vol. I)), annex III
(7) See communication No. 61/1979, Hertzberg et al. v. Finland,
Views adopted on 2 April 1982.
(8) General comment No. 31, para. 8; See communication No.
633/1995, Gauthier v. Canada, Views adopted on 7 April 1999.
(9) See communication No. 550/93, Faurisson v. France, Views
adopted on 8 November 1996.
CCPR/C/GC/34
CCPR/C/GC/34
(10) See communication No. 157/1983, Mpaka-Nsusu v. Zaire, Views
adopted on 26 March 1986; No. 414/1990, Mika Miha v. Equatorial Guinea, Views
adopted on 8 July 1994.
(11) See communication No. 878/1999, Kang v. Republic of Korea,
Views adopted on 15 July 2003.
(12) See communications Nos. 359/1989 and 385/1989, Ballantyne,
Davidson and McIntyre v. Canada, Views adopted on 18 October 1990.
(13) See communication No. 414/1990, Mika Miha v. Equatorial
Guinea.
(14) See communication No. 1189/2003, Fernando v. Sri Lanka,
Views adopted on 31 March 2005.
(15) See communication No. 1157/2003, Coleman v. Australia,
Views adopted on 17 July 2006.
(16) Concluding observations on Japan (CCPR/C/JPN/CO/5).
(17) See communication No. 1022/2001, Velichkin v. Belarus,
Views adopted on 20 October 2005.
(18) See communication No. 1334/2004, Mavlonov and Sa’di v.
Uzbekistan, Views adopted on 19 March 2009.
(19) See communication No. 926/2000, Shin v. Republic of Korea,
Views adopted on 16 March 2004.
(20) See communication No. 736/97, Ross v. Canada, Views adopted
on 18 October 2000.
(21) Ibid.
(22) Ibid.
(23) See communication No. 926/2000, Shin v. Republic of Korea.
(24) See communication No. 1341/2005,
Zundel v. Canada, Views adopted on 20 March 2007.
(25) See communication No. 1009/2001, Shchetoko et al. v.
Belarus, Views adopted on 11 July 2006.
(26) See communication No. 412/1990, Kivenmaa v. Finland, Views
adopted on 31 March 1994.
(27) See communication No. 1189/2003, Fernando v. Sri Lanka.
(28) See communication No. 1128/2002, Marques v. Angola, Views
adopted on 29 March 2005.
(29) See communication No. 633/95, Gauthier v. Canada.
(30) See the Committee’s general comment No. 25 (1996) on
article 25 (Participation in public affairs and the right to vote), para. 25,
Official Records of the General Assembly, Fifty-first Session, Supplement No.
40, vol. I (A/51/40 (Vol. I)), annex V.
(31) See communication No. 1334/2004, Mavlonov and Sa’di v.
Uzbekistan.
(32) Concluding observations on Republic of Moldova
(CCPR/CO/75/MDA).
(33) See communication No. 633/95, Gauthier v. Canada.
(34) See communication No. 1334/2004, Mavlonov and Sa’di v.
Uzbekistan.
(35) See communication No. 726/1996, Zheludkov v. Ukraine, Views
adopted on 29 October 2002.
(36) See the Committee’s general comment No. 32 (2007) on the
right to equality before courts and tribunals and to a fair trial, para. 33,
Official Records of the General Assembly, Sixty-second Session, Supplement No.
40, vol. I (A/62/40 (Vol. I)), annex VI
(37) General comment No. 31.
(38) See communication No. 1457/2006, Poma v. Peru, Views
adopted on 27 March 2009.
(39) Concluding observations on Azerbaijan (CCPR/C/79/Add.38
(1994)).
(40) See General comment No. 25 on article 25 of the Covenant,
para. 25.
(41) See the Committee’s general comment No. 27 on article 12,
Official Records of the General
Assembly, Fifty-fifth Session, Supplement No. 40, vol. I (A/55/40 (Vol. I)), annex VI, sect. A
Assembly, Fifty-fifth Session, Supplement No. 40, vol. I (A/55/40 (Vol. I)), annex VI, sect. A
(42) See communication No. 1022/2001, Velichkin v. Belarus,
Views adopted on 20 October 2005.
(43) See the Committee’s general comment No. 22, Official Records
of the General Assembly, Forty eighth Session, Supplement No. 40 (A/48/40),
annex VI
(44) See communication No. 458/91, Mukong v. Cameroon, Views
adopted on 21 July 1994.
(45) See communication No. 1353/2005, Njaru v. Cameroon, Views
adopted on 19 March 2007.
(46) See, for instance, concluding observations on Algeria
(CCPR/C/DZA/CO/3); concluding observations on Costa Rica (CCPR/C/CRI/CO/5);
concluding observations on Sudan (CCPR/C/SDN/CO/3).
(47) See communication No. 1353/2005, Njaru v. Cameroon ; concluding
observations on Nicaragua (CCPR/C/NIC/CO/3); concluding observations on Tunisia
(CCPR/C/TUN/CO/5); concluding observations on the Syrian Arab Republic
(CCPR/CO/84/SYR); concluding observations on Colombia (CCPR/CO/80/COL).
(48) Ibid. and concluding observations on Georgia
(CCPR/C/GEO/CO/3).
(49) Concluding observations on Guyana (CCPR/C/79/Add.121).
(50) See communication No. 633/95, Gauthier v. Canada.
(51) See communication No. 1373/2005, Dissanayake v. Sri Lanka,
Views adopted on 22 July 2008.
(52) See general comment No. 32.
(53) See communication No. 578/1994, de Groot v. The
Netherlands, Views adopted on 14 July 1995.
(54) See general comment No. 27.
(55) See communication No. 488/1992, Toonen v. Australia, Views
adopted on 30 March 1994.
(56) General comment No. 20, Official Records of the General
Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI, sect.
A.
(57) See communication No. 1553/2007, Korneenko et al. v.
Belarus, Views adopted on 31 October 2006.
(58) See communication No. 132/1982, Jaona v. Madagascar, Views
adopted on 1 April 1985.
(59) See communication No. 927/2000, Svetik v. Belarus, Views
adopted on 8 July 2004.
(60) Ibid.
(61) See communication No. 736/97, Ross v. Canada, Views adopted
on 18 October 2000.
(62) See communication No. 550/93, Faurisson v. France;
concluding observations on Austria (CCPR/C/AUT/CO/4).
(63) Concluding observations on Slovakia (CCPR/CO/78/SVK);
concluding observations on Israel (CCPR/CO/78/ISR).
(64) Concluding observations on Hong Kong (CCPR/C/HKG/CO/2).
(65) Concluding observations on the Russian Federation
(CCPR/CO/79/RUS).
(66) Concluding observations on Uzbekistan (CCPR/CO/71/UZB).
(67) See communication No. 518/1992, Sohn v. Republic of Korea,
Views adopted on 18 March 1994.
(68) See communication No. 1157/2003, Coleman v. Australia.
(69) See communication No. 1373/2005, Dissanayake v. Sri Lanka.
(70) See communication No. 359, 385/89, Ballantyne , Davidson
and McIntyre v. Canada.
(71) See communication No. 736/97, Ross v. Canada, Views adopted
on 17 July 2006.
(72) General comment No. 27, para. 14. See also Communications
No. 1128/2002, Marques v. Angola; No. 1157/2003, Coleman v. Australia.
(73) See communication No. 1180/2003, Bodrozic v. Serbia and Montenegro,
Views adopted on 31 October 2005.
(74) See communication No. 926/2000, Shin v. Republic of Korea.
(75) See communication No. 518/1992, Sohn v. Republic of Korea.
(76) See communication No. 511/1992, Ilmari Länsman, et al. v.
Finland, Views adopted on 14 October 1993.
(77) See communications Nos. 518/92, Sohn v. Republic of Korea;
No. 926/2000, Shin v. Republic of Korea.
(78) Concluding observations on Japan (CCPR/C/JPN/CO/5).
(79) Ibid.
(80) Concluding observations on Tunisia (CCPR/C/TUN/CO/5).
(81) Concluding observations on Togo (CCPR/CO/76/TGO);
concluding observations on Moldova (CCPR/CO/75/MDA).
(82) See communication No. 968/2001, Kim v. Republic of Korea,
Views adopted on 14 March 1996.
(83) See communication No. 1180/2003, Bodrozic v. Serbia and
Montenegro, Views adopted on 31 October 2005.
(84) Ibid.
(85) See communication No. 1128/2002, Marques v. Angola.
(86) See communications Nos. 422-424/1990, Aduayom et al. v.
Togo, Views adopted on 30 June 1994.
(87) Concluding observations on the Dominican Republic
(CCPR/CO/71/DOM).
(88) Concluding observations on Honduras (CCPR/C/HND/CO/1).
(89) See concluding observations on Zambia (CCPR/ZMB/CO/3),
para.25.
(90) See concluding observations on Costa Rica (CCPR/C/CRI/CO/5),
para. 11.
(91) Ibid., and see concluding observations on Tunisia
(CCPR/C/TUN/CO/5), para. 91.
(92) See concluding observations on Viet Nam (CCPR/CO/75/VNM),
para. 18 and including observations on Lesotho (CCPR/CO/79/Add.106), para. 23.
(93) Concluding observations on Gambia (CCPR/CO/75/GMB).
(94) See concluding observations on Lebanon (CCPR/CO/79/Add.78),
para. 25.
(95) Concluding observations on Kuwait (CCPR/CO/69/KWT);
concluding observations on Ukraine (CCPR/CO/73/UKR).
(96) Concluding observations on Kyrgyzstan (CCPR/CO/69/KGZ).
(97) Concluding observations on Ukraine (CCPR/CO/73/UKR).
(98) Concluding observations on Lebanon (CCPR/CO/79/Add.78).
(99) See concluding observations on Guyana (CCPR/CO/79/Add.121),
para. 19; concluding observations on the Russian Federation (CCPR/CO/79/RUS);
concluding observations on Viet Nam (CCPR/CO/75/VNM); concluding observations
on Italy (CCPR/C/79/Add. 37).
(100) See concluding observations on Lesotho
(CCPR/CO/79/Add.106), para. 22.
(101) Concluding observations on Ukraine (CCPR/CO/73/UKR).
(102) Concluding observations on Sri Lanka (CCPR/CO/79/LKA); and
see concluding observations on Togo (CCPR/CO/76/TGO), para. 17.
(103) Concluding observations on Peru (CCPR/CO/70/PER).
(104) Concluding observations on the Syrian Arab Republic
(CCPR/CO/84/SYR).
(105) Concluding observations on Uzbekistan (CCPR/CO/83/UZB);
concluding observations on Morocco (CCPR/CO/82/MAR).
(106) Concluding observations on Democratic People’s Republic of
Korea (CCPR/CO/72/PRK).
(107) Concluding observations on Kuwait (CCPR/CO/69/KWT).
(108) Concluding observations on the United Kingdom of Great
Britain and Northern Ireland
(CCPR/C/GBR/CO/6).
(CCPR/C/GBR/CO/6).
(109) Concluding observations on the Russian Federation
(CCPR/CO/79/RUS).
(110) Concluding observations on the United Kingdom of Great
Britain and Northern Ireland
(CCPR/C/GBR/CO/6).
(CCPR/C/GBR/CO/6).
(111) Ibid.
(112) Ibid.
(113) Concluding observations on Italy (CCPR/C/ITA/CO/5);
concluding observations on the Former Yugoslav Republic of Macedonia
(CCPR/C/MKD/CO/2).
(114) See communication No. 909/2000, Kankanamge v. Sri Lanka,
Views adopted on 27 July 2004.
(115) Concluding observations on the United Kingdom of Great
Britain and Northern Ireland-the Crown Dependencies of Jersey, Guernsey and the
Isle of Man (CCPR/C/79/Add.119). See also concluding observations on Kuwait
(CCPR/CO/69/KWT).
(116) So called “memory-laws”, see communication No. , No. 550/93,
Faurisson v. France. See also concluding observations on Hungary
(CCPR/C/HUN/CO/5) paragraph 19.
(117) See communication No. 736/1997, Ross v. Canada, Views
adopted on 18 October 2000.
Fuck the U.N and fuck the kenite rothschilds too.
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