Free speech ~ It's a can of worms. Or is it ?
Key points
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Can the right to freedom of opinion and expression be limited?
Derogation
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to freedom of opinion and expression 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.
Limitation
In addition, under article 19(3) freedom of expression may be limited as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals. Limitations must be prescribed by legislation necessary to achieve the desired purpose and proportionate to the need on which the limitation is predicated.
Rights of reputation of others
In a case which involved a complaint about a law prohibiting denial of the holocaust, the UN Human Rights Committee stated that the restriction of the complainant's freedom of expression was permissible as it was necessary for respect of the rights and reputations of others.
National security
The national security limitation would justify prohibitions on transmission of information, including 'official secrets', which would adversely affect the security of the nation, provided the prohibition is reasonable, is effective to protect national security, and restricts freedom of expression no more than is necessary to protect national security.
Public order
'Public order' is understood to mean the rules which ensure the peaceful and effective functioning of society. The limitation in article 19(3) would justify prohibitions on speech that may incite crime, violence or mass panic, provided the prohibition is reasonable, is effective to protect public order, and restricts freedom of expression no more than is necessary to protect public order.
Public health
The public health limitation has not been tested before the Human Rights Committee.
Public morals
The Human Rights Committee has stated that there is no universally applicable standard for what constitutes public morality. A restriction on certain pornographic material, for example pornographic material depicting minors, would be an example of a limitation on freedom of expression based on public morality. In Australia, the National Classification Scheme is designed to provide consumers with information about publications, films and computer games, to allow them to make informed decisions about appropriate entertainment material for themselves and their children. The Scheme is based on the following principles:
- adults should be able to read, hear and see what they want
- minors should be protected from material likely to harm or disturb them
- everyone should be protected from exposure to unsolicited material that they find offensive
- the need to take account of community concerns about depictions that condone or incite violence, particularly sexual violence, and the portrayal of persons in a demeaning manner.
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