Freedom of ExpressionFreedom of Expression

Mian Ali HaiderMian Ali HaiderL.L.B., L.L.M. (L.L.B., L.L.M. (Cum Laude)Cum Laude) U.K. U.K.

“If we don't believe in freedom of expression for people we despise, we don't believe in it at all.”

Noam Chomsky “I do not agree with what you have to say, but I'll defend to the death your right to say it.” Voltaire “Proclaim the truth and do not be silent through fear.”

Catherine of Siena

INTRODUCTIONINTRODUCTION Freedom of speech and expression has a long

history that predates modern international human rights instruments.

It is thought that ancient Athens’ democratic ideology of free speech may have emerged in the late 6th or early 5th century BC. 

The values of the Roman Republic included freedom of speech and freedom of religion.

The right to freedom of expression is crucial in a democracy – information and ideas

Which help to inform political debate and are essential to public accountability and transparency in government.

It must be remembered that the whole concept of human It must be remembered that the whole concept of human rights and of any right set out in declarations, conventions, rights and of any right set out in declarations, conventions, treaties, constitutions and laws is a essentially a distillation treaties, constitutions and laws is a essentially a distillation of centuries of philosophical discussion and debate.of centuries of philosophical discussion and debate.

Human rights are not a concept given to mankind from Human rights are not a concept given to mankind from some external source. There is reasoning behind them and some external source. There is reasoning behind them and they remain open to discussion and reinterpretationthey remain open to discussion and reinterpretation

Freedom of

Expression

Development

Democracy

Dialogue

Freedom of ExpressionFreedom of Expression

Unhindered access to Unhindered access to information and knowledge information and knowledge is is fundamental to all aspects of fundamental to all aspects of life:life:

Economic development, Economic development, Social participation and Social participation and

building democratic societiesbuilding democratic societies AAllows individuals and llows individuals and

communities to speak out, communities to speak out, express their aspirations and express their aspirations and concerns and participate in the concerns and participate in the decisions that are crucial to decisions that are crucial to development.development.

FeX contributes

to

DEVELOPMENT

Freedom of ExpressionFreedom of Expression

Free and independent Free and independent media:media:

FacilitatesFacilitates good good governance by fostering governance by fostering good relations between good relations between informed, critical, & informed, critical, & participatory citizens & participatory citizens & responsive elected responsive elected officials.officials.

StrengthensStrengthens civil society, civil society,

harnesses political harnesses political transparency & transparency & accountabilityaccountability

FeX contributes

to

DEMOCRACY

Freedom of ExpressionFreedom of Expression

Media has a great potential Media has a great potential to foster to foster mutual mutual understandingunderstanding, , peace and reconciliationpeace and reconciliation, , particularly in open conflict particularly in open conflict and post-conflict countries; and post-conflict countries; pluralistic media can pluralistic media can reflect reflect the cultural and linguistic the cultural and linguistic diversitydiversity of people of people

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to

DIALOGUE

Whether there are limits to freedom of expression?Whether there are limits to freedom of expression? Is there anything that cannot be said, or circumstances under Is there anything that cannot be said, or circumstances under

which things cannot be said? which things cannot be said? Following from this there is a cluster of other questions. Following from this there is a cluster of other questions.

If freedom of expression does have limits, just how can these If freedom of expression does have limits, just how can these limits be limits be defined? defined?

Is the giving of offence one of the possible limits to freedom of Is the giving of offence one of the possible limits to freedom of expression? expression?

How can we identify the boundaries of what might How can we identify the boundaries of what might legitimately be legitimately be considered offensive? considered offensive?

Is there any kind of right to take offence?Is there any kind of right to take offence?

LAW ON FREEDOM OF LAW ON FREEDOM OF EXPRESSIONEXPRESSION

Universal Declaration of Human Rights, Article Universal Declaration of Human Rights, Article 18,19, 29, 3018,19, 29, 30

First Amendment to the Constitution of the United First Amendment to the Constitution of the United States of America, 1791States of America, 1791

European Convention on Human Rights, Article 10European Convention on Human Rights, Article 10 The Constitution of Islamic Republic of Pakistan, The Constitution of Islamic Republic of Pakistan,

1973, Article 19, 19-A, 201973, Article 19, 19-A, 20 Multiple Legislations in case of United Kingdom.Multiple Legislations in case of United Kingdom.

UNIVERSAL DECLARATION UNIVERSAL DECLARATION OF HUMAN RIGHTS.OF HUMAN RIGHTS.

Everyone has the right to freedom of thought, Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone change his religion or belief, and freedom, either alone or in community with others and in public or private, to or in community with others and in public or private, to manifest his religion or belief in teaching, practice, manifest his religion or belief in teaching, practice, worship and observance. (18)worship and observance. (18)

Everyone has the right to freedom of opinion and Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions expression; this right includes freedom to hold opinions without interference and to seek, receive and impart without interference and to seek, receive and impart information and ideas through any media and information and ideas through any media and regardless of frontiers. (19)regardless of frontiers. (19)

UNIVERSAL DECLARATION UNIVERSAL DECLARATION OF HUMAN RIGHTS.OF HUMAN RIGHTS.

It is first of all a right to freedom of opinion: an essentially It is first of all a right to freedom of opinion: an essentially Private RightPrivate Right. . Only after that is it a right to freedom of expression: a more Only after that is it a right to freedom of expression: a more Public RightPublic Right UNDHR protects the right to religious faith (actually before it protects freedom of UNDHR protects the right to religious faith (actually before it protects freedom of

expression)expression) Two important things about Articles: Two important things about Articles:

That this is first of all a right of freedom of thought and conscience that includes That this is first of all a right of freedom of thought and conscience that includes religion. religion.

It thus protects the views of those who have no religion and who may feel an It thus protects the views of those who have no religion and who may feel an antipathy to religion. antipathy to religion.

Secondly, in protecting a right to change religion or belief it implicitly protects Secondly, in protecting a right to change religion or belief it implicitly protects the the Right To PersuadeRight To Persuade others to change and confirms that by protecting public others to change and confirms that by protecting public manifestations of religion or belief, including teaching.manifestations of religion or belief, including teaching.

The UNDHR thus recognises that it is not merely a The UNDHR thus recognises that it is not merely a Right To Have BeliefsRight To Have Beliefs, but , but to to Change BeliefsChange Beliefs and also to seek to persuade others to and also to seek to persuade others to Change Their BeliefsChange Their Beliefs..

That said, it is necessary to ask what freedom of That said, it is necessary to ask what freedom of expression actually means?expression actually means? Looking at previous slides of freedom of Looking at previous slides of freedom of

expression that might help inevitably leads expression that might help inevitably leads towards the First Amendment to the American towards the First Amendment to the American Constitution. Constitution.

The eighteenth century was the period in which The eighteenth century was the period in which modern thinking on human rights was worked out, modern thinking on human rights was worked out, and the First Amendment is a classic eighteenth and the First Amendment is a classic eighteenth century statement of the freedom of expression.century statement of the freedom of expression.

First Amendment to the Constitution of First Amendment to the Constitution of the United States of America, the United States of America,

17911791 ““Congress shall make no law respecting an establishment of Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government people peaceably to assemble, and to petition the government for a redress of grievances.”for a redress of grievances.” This rejects an official establishment of any one religion, This rejects an official establishment of any one religion,

whilst protecting the practice of all religions. whilst protecting the practice of all religions. It also protects peaceable assembly and the petitioning of It also protects peaceable assembly and the petitioning of

government. government. These are important statements, but it is the protection of These are important statements, but it is the protection of

freedom of speechfreedom of speech and the and the freedom of the pressfreedom of the press . .

Although they might be considered as a single right, they are Although they might be considered as a single right, they are actually two related rights: actually two related rights: the freedom of personal expression, the freedom of personal expression, The freedom of public expression.The freedom of public expression.

(The two aspects of expression have different levels of effect and tend to be (The two aspects of expression have different levels of effect and tend to be justified in rather different ways)justified in rather different ways)

The individual right of expression as a minor and innocuous right, The individual right of expression as a minor and innocuous right, but at the same time claims for its power are also common. but at the same time claims for its power are also common.

(Example)(Example) That two such different views can be held is not surprising if That two such different views can be held is not surprising if

we distinguish between a personal statement made impromptu we distinguish between a personal statement made impromptu in the presence of only a few (basic freedom of speech), with a in the presence of only a few (basic freedom of speech), with a carefully calculated statement put out before a substantial carefully calculated statement put out before a substantial audience or using the media (freedom of the press). The power audience or using the media (freedom of the press). The power of the word to bring about, or contribute to, change is of the word to bring about, or contribute to, change is presumably indisputable. It is this power that leads to calls for presumably indisputable. It is this power that leads to calls for freedom of expression to be used responsibly. freedom of expression to be used responsibly.

When those who already exercise power also use the word as one When those who already exercise power also use the word as one of their instruments, the argument for responsibility is persuasive. of their instruments, the argument for responsibility is persuasive.

Immanuel Kant, for example, argued that:Immanuel Kant, for example, argued that: The freedom of expression might need to be controlled and The freedom of expression might need to be controlled and

restricted when it came to its use by those in authorityrestricted when it came to its use by those in authority. . The danger of the call for ‘responsible’ use of freedom of The danger of the call for ‘responsible’ use of freedom of

expression when applied to the ordinary citizen is that it can expression when applied to the ordinary citizen is that it can amount to a amount to a pressure for self-censorshippressure for self-censorship. .

In systems of government where authority actually requires In systems of government where authority actually requires ‘responsible’ use, this is essentially a basis for a ‘responsible’ use, this is essentially a basis for a system of system of formal censorshipformal censorship. .

For this reason the fear that there will be calls for responsible For this reason the fear that there will be calls for responsible use of freedom of expression is a natural oneuse of freedom of expression is a natural one

The editor of Jyllands Posten is said to have The editor of Jyllands Posten is said to have deliberately chosen to publish the offending deliberately chosen to publish the offending cartoons because he believed that the Danish cartoons because he believed that the Danish media already practised self-censorship in media already practised self-censorship in relation to the country’s Muslim community. relation to the country’s Muslim community.

Subsequently the response to Muslim protest Subsequently the response to Muslim protest has included strong claims that a climate of has included strong claims that a climate of self-censorship was the likely result. self-censorship was the likely result.

Nevertheless it is clear that, outside the most Nevertheless it is clear that, outside the most extreme libertarian circles, the right to extreme libertarian circles, the right to freedom of expression is always seen as freedom of expression is always seen as subject to certain limits and conditions.subject to certain limits and conditions.

LIMITATIONS TO FREEDOM LIMITATIONS TO FREEDOM OF EXPRESSIONOF EXPRESSION

Limitations on freedom of expression are Limitations on freedom of expression are made comparatively explicit in the formal made comparatively explicit in the formal agreements on human rights drawn up by agreements on human rights drawn up by governments. governments. The European Convention on Human Rights The European Convention on Human Rights

(1950), Article 10, (1950), Article 10, United Nation Declaration on Human Rights, United Nation Declaration on Human Rights,

Article 29, 30Article 29, 30

European Convention on Human Rights, Article 10European Convention on Human Rights, Article 101. Everyone has the right to freedom of expression. This right 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema from requiring the licensing of broadcasting, television or cinema enterprises. enterprises. 2. The exercise of these freedoms, since it carries with it duties 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.maintaining the authority and impartiality of the judiciary.

Article 10 is a qualified right and as such the right to freedom of expression may be limited. 

Article 10 provides that the exercise of this freedom

“since it carries with it duties and responsibilities”

Limitations is prescribed by law; is necessary and proportionate; and pursues a legitimate aim, namely:

the interests of national security, territorial integrity or public safety;

the prevention of disorder or crime; the protection of health or morals; the protection of the reputation or rights of others; preventing the disclosure of information received in

confidence; or maintaining the authority and impartiality of the judiciary.

These limitations threatens the whole structureThese limitations threatens the whole structure Yet it is a fundamental principle expressed in Yet it is a fundamental principle expressed in

Article 29 of the Universal Declaration that such Article 29 of the Universal Declaration that such limitations do exist. limitations do exist.

They are expressed in terms of They are expressed in terms of ‘duties to ‘duties to the the community’community’

Their scope is constrained in general terms by Their scope is constrained in general terms by considerations that include respect for the rights considerations that include respect for the rights of others. of others.

Universal Declaration of Human Rights, Article 29Universal Declaration of Human Rights, Article 291. Everyone has 1. Everyone has duties to the communityduties to the community in which alone the in which alone the freedom and full development of his own personality is possible.freedom and full development of his own personality is possible.2. In the exercise of his rights and freedoms, everyone shall be 2. In the exercise of his rights and freedoms, everyone shall be subject only to such subject only to such limitations as are determined by lawlimitations as are determined by law solely solely for the purpose of securing due recognition for the rights and for the purpose of securing due recognition for the rights and freedoms of othersfreedoms of others and of meeting the just requirements of and of meeting the just requirements of morality, public order and the general welfare of a democratic morality, public order and the general welfare of a democratic society.society.3. These rights and freedoms may in no case be exercised 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.contrary to the purposes and principles of the United Nations.

If this is in danger of being seen as If this is in danger of being seen as insufficiently strong on the circumstances in insufficiently strong on the circumstances in which human rights can be limited, which human rights can be limited,

In the 30th and final Article of the Universal In the 30th and final Article of the Universal Declaration, the point is made even more Declaration, the point is made even more directly.directly.

““Nothing in this declaration may be interpreted Nothing in this declaration may be interpreted as implying for any State, group or person any as implying for any State, group or person any right to engage in any activity or to perform right to engage in any activity or to perform any act aimed at the destruction of any of the any act aimed at the destruction of any of the rights and freedoms set forth herein”rights and freedoms set forth herein”

The second clause of Article 29 calls for the The second clause of Article 29 calls for the law to be used as the test of what might be law to be used as the test of what might be invoked as a limitation to the exercise of the invoked as a limitation to the exercise of the rights (including the right of free expression), rights (including the right of free expression), and Article 30 sets what looks like an absolute and Article 30 sets what looks like an absolute limit to the ‘destruction’ of rights and limit to the ‘destruction’ of rights and freedomsfreedoms

The assessment of whether or not an action by authority imposes greater restrictions than those necessary to achieve its proper purposes? Doctrine of ‘proportionality’ possesses the answer The problem is that whilst anyone can form a

personal view of where the proportionality lies in a given clash of laws or rights?

It is the courts of law that are likely to be the forum in which a decision is made.

Article 29 places the responsibility in the hands of the legislators and the use of the principle of proportionality relies on the judiciary.

Where can ordinary citizens, or indeed ordinary information professionals, who need to work out their own response turn for more specific guidance?

John S, Mill 1859 “Harm Principle” He suggested that the use of freedom of expression could

reasonably be limited if it caused harm to others. Example

The attraction of the use of harm as a guiding principle is that harm can quite often be measured: It might involve financial loss or personal injury.

In this context it is generally taken to mean harm to the rights of others and as such it requires more or less the kind of calculation of proportionality suggested in previous slide.

Recent incidents tells that offence has entered in the list of Recent incidents tells that offence has entered in the list of harmharm

There has been an increase of cases in which people, usually There has been an increase of cases in which people, usually members of religious groups, protest vehemently that they members of religious groups, protest vehemently that they have suffered offence and that they should be protected from have suffered offence and that they should be protected from this.this. Blasphemous cartoons, Jerry’s Springer, The Opera, BehztiBlasphemous cartoons, Jerry’s Springer, The Opera, Behzti

Joel Finberg 1988 “ Offence Principle”Joel Finberg 1988 “ Offence Principle” ““The principle suggests that assessment of offence should take into The principle suggests that assessment of offence should take into

account issues such as the motives of the speaker, the number of account issues such as the motives of the speaker, the number of people offended, community interests, and the extent to which the people offended, community interests, and the extent to which the material could be avoided”material could be avoided”

IRAN IRAN

Source: http://www.amnesty.org.au/news/comments/27997/?utm_medium=twitter&utm_source=wallpost&utm_campaign=crisis accessed on 20th November 2014

TUNISIATUNISIA Three newsmen from Three newsmen from

Tunisian printed newspaper Tunisian printed newspaper AttounisiaAttounisia were arrested for were arrested for publishing a controversial publishing a controversial picture of Tunisian and Real picture of Tunisian and Real Madrid soccer player Sami Madrid soccer player Sami Kedira and model Lena Kedira and model Lena Gercke's naked photograph.Gercke's naked photograph.

Source: http://globalvoicesonline.org/2012/02/20/tunisia-a-year-after-the-revolution-limitations-on-freedom-of-expression-continue Accessed on 20th November, 2014

PAKISTANPAKISTAN

Source: http://ictrdf.org.pk/ and http://content.bytesforall.pk/node/39

INDIAINDIA

Source: http://www.ndtv.com/article/india/can-block-websites-like-china-delhi-high-court-warns-facebook-google-166383 accessed on 19th November 2014

CONCLUSIONCONCLUSION