Freedom of expression
Freedom of expression is one of the main fundamental human rights, enshrined in several international human rights treaties. This right applies both offline and online. The internet, with the opportunities it offers people to express themselves, is an enabler of the exercise of this right.
Online freedom of expression has featured highly on the diplomatic agenda over the past few years. It is an important issue for the UN Council of Human Rights, and for regional intergovernmental bodies such as the Council of Europe. It has also been discussed at numerous internet governance-related processes.
Despite being enshrined in various legal instruments and in national constitutions, online freedom of expression has been a contentious policy area. As of late, this right is being curtailed through governmental content control, censorship, and surveillance in many countries, often for political reasons.
Instruments which enshrine our freedom of expression
Several international instruments guarantee the right to freedom of opinion and expression without interference, and to seek, receive, and impart information and ideas through any media or frontier, including:
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Article 19 of the Universal Declaration of Human Rights [UDHR] (1948);
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Article 19 of the International Covenant on Civil and Political Rights [ICCPR] (1966);
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Article 10 of the European Convention on Human Rights [ECHR] (1950); and
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Article 13 of the American Convention of Human Rights [ACHR] (1969).
When it comes to applying freedom of expression to the online environment, the main instrument is the UN Human Rights Council Resolution on Protection of Freedom of Expression on the Internet (2012), which states that ‘the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice’.
Limitations to one’s freedom of expression
The above instruments provide a number of guarantees for the freedom of expression, but this right is also counterbalanced by the right of the state to establish limitations for the sake of morality, public order, and general welfare:
In the above instruments, one’s freedom of expression is subject to the following limitations:
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‘For the purpose of morality, public order, and general welfare’ (UNHR, Article 29);
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‘For the protection of national security or of public order (ordre public), or of public health or morals’ (ICCPR, Article 19);
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‘In the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary’ (ECHR, Article 10); and
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‘To ensure the protection of national security, public order, or public health or morals’ (ACHR, Article 13).
Thus, both the discussion and implementation of the right to freedom of expression must be put in the context of establishing a proper balance between the right and its limitations.
One of the main issues is that the limitations are open to many different interpretations of norms and ultimately different implementations. As a result, in many countries, the right is often curtailed through governmental online censorship and content control. In some cases, governments go as far as shutting down Internet access for regions or even for the entire country.
What are the reasons governments give for limiting the right to freedom of expression? There is a wide range of justifications, including protests, elections, and exams. In 2019, for instance, in various regions in India, access was interrupted over 100 times, due to protests mainly against the Citizenship Amendment Act. In Iran, the internet was shut down due to protests over fuel subsidies cuts that hiked prices for consumers. In Bangladesh, the Democratic Republic of Congo, and Gabon, access was suspended during elections. In Ethiopia, Internet was cut off as a measure to counter cheating during national secondary school final exams.
A study by the Geneva Internet Platform in August 2019 confirmed that there has been an increase in partial and widespread Internet restrictions in recent years, and that there have been more shutdowns in 2019 than any other year.
Read more: Internet shutdowns: Mapping Internet restrictions and their implications (Digital Watch Newsletter, Issue 42)
Safeguarding freedom of expression
David Kaye, the former UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, has emphasised on numerous occasions that the right to freedom of expression online deserves stronger protections. Issues tackled by the special rapporteur’s annual and thematic reports include state surveillance of communications; the safeguarding of citizens’ rights during elections; online hate speech; the use of encryption and anonymity; children’s right to express themselves; the role of the private sector and digital access providers; the implications of artificial intelligence on citizens’ rights; the protection of journalists when exercising their right to freedom of expression; and protection against censorship while addressing online gender-based abuse.
Freedom of expression also appears in broader discussions on human rights and on access to the internet. NGOs such as Human Rights Watch, Amnesty International, Freedom House, Article 19, and Access Now have developed numerous mechanisms for discussing and implementing freedom of expression on the internet. For instance, Freedom House evaluates the level of internet and mobile phone freedom experienced by average users in sample countries around the world.
