Freedom
of expression is not an absolute right and it may be limited in certain
circumstances. But such limitations must conform to clearly defined standards.
Almost invariably it will not be legitimate to restrict political speech before
it is spoken. So, while a person who is defamed may have a legal remedy, it is
not acceptable to apply prior censorship to politicians’ words to ensure that
they do not contain defamatory content.
Article
19 of the International Covenant on Civil and Political Rights provides in paragraph
3 a number of grounds on which the right may be restricted.
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 and
reputations of others; (b) For the protection of national security or of public
order, or of public health or morals.
Article
20 of the ICCPR may also be relevant on occasions. This prohibits propaganda
for war and advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence.
The UN
Technical Team on the Malawi Referendum applied these principles to national
law governing a poll campaign. It stated that an restriction on freedom of
expression:
should not be so vague or broadly defined as to leave an
overly wide margin of discretion to the authorities responsible for enforcing
the law, since uncertainty over legal boundaries has a dampening effect on the
exercise of this right [to freedom of expression] and may encourage
discrimination in ... [the restrictions'] application.[i]
[i] “Report of the
UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of
a One Party/Multiparty System in Malawi” (15-21 Nov. 1992), para. 29.
