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.
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. (See International Treaties on media and elections.)
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 (ordre public), or of public health or morals.
Jurisprudence has established that freedom of expression under international law may only be limited by the application of a three-part test in order to establish that the limitation is:
- Established by law - that is, that it must pre-exist in national or binding international law;
- Serving a legitimate purpose - that is, one of the purposes contained in Article 19(3) of the ICCPR;
- And necessary in a democratic society. This means, among other things, that the restriction should be proportionate to its purpose and that it should not detract from the essence of the right itself.
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.30
See Policies on Hate Speech and Defamation.
