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    Wednesday
    Jan022013

    UN Article 19: Human Rights and History Revisionism

    An Introduction by Gabi Weber and Gilad Atzmon

    http://othersite.org & gilad.co.uk

    UN Human Rights Committee, July 2011: General Comment on Article 19 – Freedoms of Opinion and Expression

     Just a few days ago we came across the following from the UN Human Rights Committee – an independent body tasked with supervising compliance with the International Covenant on Civil and Political Rights (ICCPR).

    The document, from the Office of the High Commissioner for Human Rights (OCHR), dates from July 2011 and concerns freedom of opinion and expression. It  states that "anti-blasphemy laws and restrictions on criticism of governments are incompatible with existing norms and that free expression is essential for the protection of human rights."

    This report, entitled General Comment, is an interpretation of the 1966 International Covenant on Civil and Political Rights (ICCPR) – a covenant with 167 state signatories, signed and ratified also by Germany, France, Switzerland and other European countries.

     Crucial to the committee´s comments are the so-called “memory laws,” which it defined as "laws that penalize the expression of opinions about historical facts” and sees these laws as “incompatible with the obligations that the covenant imposes on States parties in relation to the respect for freedom of opinion and expression.” and goes on to say that, “Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights” .

    In spite of the significance of this  document,  it was not reported by any media outlet. 

    Reading it makes it abundantly clear that governments and political organizations that prohibit the elementary right to present alternative historical accounts are in clear violation of the United Nations’ position on freedom of opinion and expression. This obviously applies to Germany, France and Austria but it also applies to many 'progressive' organizations (Jewish and Non-Jewish) and individuals that are engaged in relentless harassment campaigns against dissent voices within the (Jewish and Non-Jewish) communities and beyond.   

     The document states clearly that "It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1.", and in the footnotes are references to many relevant cases.

    Think about it.

    International Covenant on Civil and Political Rights

    Article 19

    1. Everyone shall have the right to hold opinions without interference.

    2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

    3. 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 or reputations of others;

    (b) For the protection of national security or of public order (ordre public), or of public health or morals.

    Article 20

    1. Any propaganda for war shall be prohibited by law.

    2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

     

    GE.11-45331
    Human Rights Committee
    102nd session
    Geneva, 11-29 July 2011
    General comment No. 34


    Article 19: Freedoms of opinion and expression

    General remarks


    1. This general comment replaces general comment No. 10 (nineteenth session).

    2. Freedom of opinion and freedom of expression are indispensable conditions for the
    full development of the person. They are essential for any society.(1) They constitute the
    foundation stone for every free and democratic society. The two freedoms are closely
    related, with freedom of expression providing the vehicle for the exchange and
    development of opinions.

    3. Freedom of expression is a necessary condition for the realization of the principles
    of transparency and accountability that are, in turn, essential for the promotion and
    protection of human rights.

    4. Among the other articles that contain guarantees for freedom of opinion and/or
    expression, are articles 18, 17, 25 and 27. The freedoms of opinion and expression form a
    basis for the full enjoyment of a wide range of other human rights. For instance, freedom of
    expression is integral to the enjoyment of the rights to freedom of assembly and association,
    and the exercise of the right to vote.

    5. Taking account of the specific terms of article 19, paragraph 1, as well as the
    relationship of opinion and thought (article 18), a reservation to paragraph 1 would be
    incompatible with the object and purpose of the Covenant.(2) Furthermore, although freedom
    of opinion is not listed among those rights that may not be derogated from pursuant to the
    provisions of article 4 of the Covenant, it is recalled that, “in those provisions of the
    Covenant that are not listed in article 4, paragraph 2, there are elements that in the
    Committee’s opinion cannot be made subject to lawful derogation under article 4”. (3)
    Freedom of opinion is one such element, since it can never become necessary to derogate
    from it during a state of emergency.(4)

    6. Taking account of the relationship of freedom of expression to the other rights in the
    Covenant, while reservations to particular elements of article 19, paragraph 2, may be
    acceptable, a general reservation to the rights set out in paragraph 2 would be incompatible
    with the object and purpose of the Covenant.(5)

    7. The obligation to respect freedoms of opinion and expression is binding on every
    State party as a whole. All branches of the State (executive, legislative and judicial) and
    other public or governmental authorities, at whatever level – national, regional or local –
    are in a position to engage the responsibility of the State party.(6) Such responsibility may
    also be incurred by a State party under some circumstances in respect of acts of semi-State
    entities.(7) The obligation also requires States parties to ensure that persons are protected
    from any acts by private persons or entities that would impair the enjoyment of the
    freedoms of opinion and expression to the extent that these Covenant rights are amenable to
    application between private persons or entities.(8)

    8. States parties are required to ensure that the rights contained in article 19 of the
    Covenant are given effect to in the domestic law of the State, in a manner consistent with
    the guidance provided by the Committee in its general comment No. 31 on the nature of the
    general legal obligation imposed on States parties to the Covenant.
    It is recalled that States
    parties should provide the Committee, in accordance with reports submitted pursuant to
    article 40, with the relevant domestic legal rules, administrative practices and judicial
    decisions, as well as relevant policy level and other sectorial practices relating to the rights
    protected by article 19, taking into account the issues discussed in the present general
    comment. They should also include information on remedies available if those rights are
    violated.

    Freedom of opinion

    9. Paragraph 1 of article 19 requires protection of the right to hold opinions without
    interference. This is a right to which the Covenant permits no exception or restriction.
    Freedom of opinion extends to the right to change an opinion whenever and for whatever
    reason a person so freely chooses. No person may be subject to the impairment of any
    rights under the Covenant on the basis of his or her actual, perceived or supposed opinions.
    All forms of opinion are protected, including opinions of a political, scientific, historic,
    moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of
    an opinion.(9) The harassment, intimidation or stigmatization of a person, including arrest,
    detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a
    violation of article 19, paragraph 1.(10)

    10. Any form of effort to coerce the holding or not holding of any opinion is
    prohibited.(11) Freedom to express one’s opinion necessarily includes freedom not to express
    one’s opinion.

    Freedom of expression

    11. Paragraph 2 requires States parties to guarantee the right to freedom of expression,
    including the right to seek, receive and impart information and ideas of all kinds regardless
    of frontiers.
    This right includes the expression and receipt of communications of every form
    of idea and opinion capable of transmission to others, subject to the provisions in article 19,
    paragraph 3, and article 20.(12) It includes political discourse,(13) commentary on one’s own(14)
    and on public affairs,(15) canvassing,(16) discussion of human rights,(17) journalism,(18) cultural and
    artistic expression,(19) teaching,(20) and religious discourse.(21) It may also include commercial
    advertising. The scope of paragraph 2 embraces even expression that may be regarded as
    deeply offensive,(22) although such expression may be restricted in accordance with the
    provisions of article 19, paragraph 3 and article 20.

    12. Paragraph 2 protects all forms of expression and the means of their dissemination.
    Such forms include spoken, written and sign language and such non-verbal expression as
    images and objects of art.
    (23) Means of expression include books, newspapers,(24) pamphlets,(25)
    posters, banners,(26) dress and legal submissions. (27) They include all forms of audio-visual as
    well as electronic and internet-based modes of expression.

    Freedom of expression and the media

    13. A free, uncensored and unhindered press or other media is essential in any society to
    ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It
    constitutes one of the cornerstones of a democratic society.(28)
    The Covenant embraces a
    right whereby the media may receive information on the basis of which it can carry out its
    function.(29) The free communication of information and ideas about public and political
    issues between citizens, candidates and elected representatives is essential. This implies a
    free press and other media able to comment on public issues without censorship or restraint
    and to inform public opinion.(30) The public also has a corresponding right to receive media
    output.(31)

    14. As a means to protect the rights of media users, including members of ethnic and
    linguistic minorities, to receive a wide range of information and ideas, States parties should
    take particular care to encourage an independent and diverse media.

    15. States parties should take account of the extent to which developments in
    information and communication technologies, such as internet and mobile based electronic
    information dissemination systems, have substantially changed communication practices
    around the world. There is now a global network for exchanging ideas and opinions that
    does not necessarily rely on the traditional mass media intermediaries. States parties should
    take all necessary steps to foster the independence of these new media and to ensure access
    of individuals thereto.

    16. States parties should ensure that public broadcasting services operate in an
    independent manner.(32) In this regard, States parties should guarantee their independence
    and editorial freedom. They should provide funding in a manner that does not undermine
    their independence.

    17. Issues concerning the media are discussed further in the section of this general
    comment that addresses restrictions on freedom of expression.

     

    Right of access to information

    18. Article 19, paragraph 2 embraces a right of access to information held by public
    bodies. Such information includes records held by a public body, regardless of the form in
    which the information is stored, its source and the date of production. Public bodies are as
    indicated in paragraph 7 of this general comment. The designation of such bodies may also
    include other entities when such entities are carrying out public functions. As has already
    been noted, taken together with article 25 of the Covenant, the right of access to
    information includes a right whereby the media has access to information on public affairs(33)
    and the right of the general public to receive media output.(34) Elements of the right of access
    to information are also addressed elsewhere in the Covenant. As the Committee observed in
    its general comment No. 16, regarding article 17 of the Covenant, every individual should
    have the right to ascertain in an intelligible form, whether, and if so, what personal data is
    stored in automatic data files, and for what purposes. Every individual should also be able
    to ascertain which public authorities or private individuals or bodies control or may control
    his or her files. If such files contain incorrect personal data or have been collected or
    processed contrary to the provisions of the law, every individual should have the right to
    have his or her records rectified. Pursuant to article 10 of the Covenant, a prisoner does not
    lose the entitlement to access to his medical records.(35) The Committee, in general comment
    No. 32 on article 14, set out the various entitlements to information that are held by those
    accused of a criminal offence.(36) Pursuant to the provisions of article 2, persons should be in
    receipt of information regarding their Covenant rights in general.(37) Under article 27, a State
    party’s decision-making that may substantively compromise the way of life and culture of a
    minority group should be undertaken in a process of information-sharing and consultation
    with affected communities.(38)

    19. To give effect to the right of access to information, States parties should proactively
    put in the public domain Government information of public interest. States parties should
    make every effort to ensure easy, prompt, effective and practical access to such
    information. States parties should also enact the necessary procedures, whereby one may
    gain access to information, such as by means of freedom of information legislation.(39) The
    procedures should provide for the timely processing of requests for information according
    to clear rules that are compatible with the Covenant. Fees for requests for information
    should not be such as to constitute an unreasonable impediment to access to information.
    Authorities should provide reasons for any refusal to provide access to information.
    Arrangements should be put in place for appeals from refusals to provide access to
    information as well as in cases of failure to respond to requests.

    Freedom of expression and political rights

    20. The Committee, in general comment No. 25 on participation in public affairs and the
    right to vote, elaborated on the importance of freedom of expression for the conduct of
    public affairs and the effective exercise of the right to vote. The free communication of
    information and ideas about public and political issues between citizens, candidates and
    elected representatives is essential. This implies a free press and other media able to
    comment on public issues and to inform public opinion without censorship or restraint.(40)
    The attention of States parties is drawn to the guidance that general comment No. 25
    provides with regard to the promotion and the protection of freedom of expression in that
    context.

    The application of article 19 (3)

    21. Paragraph 3 expressly states that the exercise of the right to freedom of expression
    carries with it special duties and responsibilities. For this reason two limitative areas of
    restrictions on the right are permitted, which may relate either to respect of the rights or
    reputations of others or to the protection of national security or of public order (ordre
    public) or of public health or morals. However, when a State party imposes restrictions on
    the exercise of freedom of expression, these may not put in jeopardy the right itself. The
    Committee recalls that the relation between right and restriction and between norm and
    exception must not be reversed.(41) The Committee also recalls the provisions of article 5,
    paragraph 1, of the Covenant according to which “nothing in the present Covenant may be
    interpreted as implying for any State, group or person any right to engage in any activity or
    perform any act aimed at the destruction of any of the rights and freedoms recognized
    herein or at their limitation to a greater extent than is provided for in the present Covenant”.

    22. Paragraph 3 lays down specific conditions and it is only subject to these conditions
    that restrictions may be imposed: the restrictions must be “provided by law”; they may only
    be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and
    they must conform to the strict tests of necessity and proportionality.(42) Restrictions are not
    allowed on grounds not specified in paragraph 3, even if such grounds would justify
    restrictions to other rights protected in the Covenant. Restrictions must be applied only for
    those purposes for which they were prescribed and must be directly related to the specific
    need on which they are predicated.(43)

    23. States parties should put in place effective measures to protect against attacks aimed
    at silencing those exercising their right to freedom of expression. Paragraph 3 may never be
    invoked as a justification for the muzzling of any advocacy of multi-party democracy,
    democratic tenets and human rights(44). Nor, under any circumstance, can an attack on a
    person, because of the exercise of his or her freedom of opinion or expression, including
    such forms of attack as arbitrary arrest, torture, threats to life and killing, be compatible
    with article 19. (45) Journalists are frequently subjected to such threats, intimidation and
    attacks because of their activities. (46) So too are persons who engage in the gathering and
    analysis of information on the human rights situation and who publish human rights-related
    reports, including judges and lawyers.(47) All such attacks should be vigorously investigated
    in a timely fashion, and the perpetrators prosecuted,(48) and the victims, or, in the case of
    killings, their representatives, be in receipt of appropriate forms of redress.(49)

    24. Restrictions must be provided by law. Law may include laws of parliamentary
    privilege (50) and laws of contempt of court. (51) Since any restriction on freedom of expression
    constitutes a serious curtailment of human rights, it is not compatible with the Covenant for
    a restriction to be enshrined in traditional, religious or other such customary law. (52)

    25. For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be
    formulated with sufficient precision to enable an individual to regulate his or her conduct
    accordingly (53) and it must be made accessible to the public. A law may not confer unfettered
    discretion for the restriction of freedom of expression on those charged with its execution.(54)
    Laws must provide sufficient guidance to those charged with their execution to enable them
    to ascertain what sorts of expression are properly restricted and what sorts are not.

    26. Laws restricting the rights enumerated in article 19, paragraph 2, including the laws
    referred to in paragraph 24, must not only comply with the strict requirements of article 19,
    paragraph 3 of the Covenant but must also themselves be compatible with the provisions,
    aims and objectives of the Covenant. (55) Laws must not violate the non-discrimination
    provisions of the Covenant. Laws must not provide for penalties that are incompatible with
    the Covenant, such as corporal punishment.(56)

    27. It is for the State party to demonstrate the legal basis for any restrictions imposed on
    freedom of expression.(57
    ) If, with regard to a particular State party, the Committee has to
    consider whether a particular restriction is imposed by law, the State party should provide
    details of the law and of actions that fall within the scope of the law.(58)

    28. The first of the legitimate grounds for restriction listed in paragraph 3 is that of
    respect for the rights or reputations of others. The term “rights” includes human rights as
    recognized in the Covenant and more generally in international human rights law. For
    example, it may be legitimate to restrict freedom of expression in order to protect the right
    to vote under article 25, as well as rights article under 17 (see para. 37).(59) Such restrictions
    must be constructed with care: while it may be permissible to protect voters from forms of
    expression that constitute intimidation or coercion, such restrictions must not impede
    political debate, including, for example, calls for the boycotting of a non-compulsory
    vote. (60) The term “others” relates to other persons individually or as members of a
    community. (61) Thus, it may, for instance, refer to individual members of a community
    defined by its religious faith (62) or ethnicity. (63)

    29. The second legitimate ground is that of protection of national security or of public
    order (ordre public), or of public health or morals.

    30. Extreme care must be taken by States parties to ensure that treason laws (64) and
    similar provisions relating to national security, whether described as official secrets or
    sedition laws or otherwise, are crafted and applied in a manner that conforms to the strict
    requirements of paragraph 3. It is not compatible with paragraph 3, for instance, to invoke
    such laws to suppress or withhold from the public information of legitimate public interest
    that does not harm national security or to prosecute journalists, researchers, environmental
    activists, human rights defenders, or others, for having disseminated such information. (65)
    Nor is it generally appropriate to include in the remit of such laws such categories of
    information as those relating to the commercial sector, banking and scientific progress. (66)
    The Committee has found in one case that a restriction on the issuing of a statement in
    support of a labour dispute, including for the convening of a national strike, was not
    permissible on the grounds of national security.(67)

    31. On the basis of maintenance of public order (ordre public) it may, for instance, be
    permissible in certain circumstances to regulate speech-making in a particular public
    place. (68) Contempt of court proceedings relating to forms of expression may be tested
    against the public order (ordre public) ground. In order to comply with paragraph 3, such
    proceedings and the penalty imposed must be shown to be warranted in the exercise of a
    court’s power to maintain orderly proceedings.(69) Such proceedings should not in any way
    be used to restrict the legitimate exercise of defence rights.

    32. The Committee observed in general comment No. 22, that “the concept of morals
    derives from many social, philosophical and religious traditions; consequently, limitations…
    for the purpose of protecting morals must be based on principles not deriving exclusively
    from a single tradition”. Any such limitations must be understood in the light of
    universality of human rights and the principle of non-discrimination

    33. Restrictions must be “necessary” for a legitimate purpose. Thus, for instance, a
    prohibition on commercial advertising in one language, with a view to protecting the
    language of a particular community, violates the test of necessity if the protection could be
    achieved in other ways that do not restrict freedom of expression.(70) On the other hand, the
    Committee has considered that a State party complied with the test of necessity when it
    transferred a teacher who had published materials that expressed hostility toward a religious
    community to a non-teaching position in order to protect the right and freedom of children
    of that faith in a school district.(71)

    34. Restrictions must not be overbroad. The Committee observed in general comment
    No. 27 that “restrictive measures must conform to the principle of proportionality; they
    must be appropriate to achieve their protective function; they must be the least intrusive
    instrument amongst those which might achieve their protective function; they must be
    proportionate to the interest to be protected…The principle of proportionality has to be
    respected not only in the law that frames the restrictions but also by the administrative and
    judicial authorities in applying the law”.(72) The principle of proportionality must also take
    account of the form of expression at issue as well as the means of its dissemination. For
    instance, the value placed by the Covenant upon uninhibited expression is particularly high
    in the circumstances of public debate in a democratic society concerning figures in the
    public and political domain.(73)

    35. When a State party invokes a legitimate ground for restriction of freedom of
    expression, it must demonstrate in specific and individualized fashion the precise nature of
    the threat, and the necessity and proportionality of the specific action taken, in particular by
    establishing a direct and immediate connection between the expression and the threat.(74)

    36. The Committee reserves to itself an assessment of whether, in a given situation,
    there may have been circumstances which made a restriction of freedom of expression
    necessary.(75) In this regard, the Committee recalls that the scope of this freedom is not to be
    assessed by reference to a “margin of appreciation”(76) and in order for the Committee to
    carry out this function, a State party, in any given case, must demonstrate in specific
    fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph
    3 that has caused it to restrict freedom of expression.(77)
    Limitative scope of restrictions on freedom of expression in certain
    specific areas

    37. Among restrictions on political discourse that have given the Committee cause for
    concern are the prohibition of door-to-door canvassing,(78) restrictions on the number and
    type of written materials that may be distributed during election campaigns, 79 blocking
    access during election periods to sources, including local and international media, of
    political commentary,(80) and limiting access of opposition parties and politicians to media
    outlets.(81) Every restriction should be compatible with paragraph 3. However, it may be
    legitimate for a State party to restrict political polling imminently preceding an election in
    order to maintain the integrity of the electoral process.(82)

    38. As noted earlier in paragraphs 13 and 20, concerning the content of political
    discourse, the Committee has observed that in circumstances of public debate concerning
    public figures in the political domain and public institutions, the value placed by the
    Covenant upon uninhibited expression is particularly high.(83) Thus, the mere fact that forms
    of expression are considered to be insulting to a public figure is not sufficient to justify the
    imposition of penalties, albeit public figures may also benefit from the provisions of the
    Covenant.(84) Moreover, all public figures, including those exercising the highest political
    authority such as heads of state and government, are legitimately subject to criticism and
    political opposition.(85) Accordingly, the Committee expresses concern regarding laws on
    such matters as, lese majesty,(86) desacato,(87) disrespect for authority,(88) disrespect for flags and
    symbols, defamation of the head of state (89) and the protection of the honour of public
    officials,(90) and laws should not provide for more severe penalties solely on the basis of the
    identity of the person that may have been impugned. States parties should not prohibit
    criticism of institutions, such as the army or the administration.(91)

    39. States parties should ensure that legislative and administrative frameworks for the
    regulation of the mass media are consistent with the provisions of paragraph 3. (92) Regulatory
    systems should take into account the differences between the print and broadcast sectors
    and the internet, while also noting the manner in which various media converge. It is
    incompatible with article 19 to refuse to permit the publication of newspapers and other
    print media other than in the specific circumstances of the application of paragraph 3. Such
    circumstances may never include a ban on a particular publication unless specific content,
    that is not severable, can be legitimately prohibited under paragraph 3. States parties must
    avoid imposing onerous licensing conditions and fees on the broadcast media, including on
    community and commercial stations. (93) The criteria for the application of such conditions
    and licence fees should be reasonable and objective, (94) clear, (95) transparent, (96) nondiscriminatory
    and otherwise in compliance with the Covenant. (97) Licensing regimes for
    broadcasting via media with limited capacity, such as audiovisual terrestrial and satellite
    services should provide for an equitable allocation of access and frequencies between
    public, commercial and community broadcasters. It is recommended that States parties that
    have not already done so should establish an independent and public broadcasting licensing
    authority, with the power to examine broadcasting applications and to grant licenses. (98)

    40. The Committee reiterates its observation in general comment No. 10 that “because
    of the development of modern mass media, effective measures are necessary to prevent
    such control of the media as would interfere with the right of everyone to freedom of
    expression”. The State should not have monopoly control over the media and should
    promote plurality of the media. (99) Consequently, States parties should take appropriate
    action, consistent with the Covenant, to prevent undue media dominance or concentration
    by privately controlled media groups in monopolistic situations that may be harmful to a
    diversity of sources and views.

    41. Care must be taken to ensure that systems of government subsidy to media outlets
    and the placing of government advertisements (100) are not employed to the effect of impeding
    freedom of expression.(101) Furthermore, private media must not be put at a disadvantage
    compared to public media in such matters as access to means of dissemination/distribution
    and access to news.(102)

    42. The penalization of a media outlet, publishers or journalist solely for being critical
    of the government or the political social system espoused by the government (103) can never be
    considered to be a necessary restriction of freedom of expression.

    43. Any restrictions on the operation of websites, blogs or any other internet-based,
    electronic or other such information dissemination system, including systems to support
    such communication, such as internet service providers or search engines, are only
    permissible to the extent that they are compatible with paragraph 3. Permissible restrictions
    generally should be content-specific; generic bans on the operation of certain sites and
    systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to
    prohibit a site or an information dissemination system from publishing material solely on
    the basis that it may be critical of the government or the political social system espoused by
    the government.(104)

    44. Journalism is a function shared by a wide range of actors, including professional
    full-time reporters and analysts, as well as bloggers and others who engage in forms of selfpublication
    in print, on the internet or elsewhere, and general State systems of registration
    or licensing of journalists are incompatible with paragraph 3. Limited accreditation
    schemes are permissible only where necessary to provide journalists with privileged access
    to certain places and/or events. Such schemes should be applied in a manner that is nondiscriminatory
    and compatible with article 19 and other provisions of the Covenant, based
    on objective criteria and taking into account that journalism is a function shared by a wide
    range of actors.

    45. It is normally incompatible with paragraph 3 to restrict the freedom of journalists
    and others who seek to exercise their freedom of expression (such as persons who wish to
    travel to human rights-related meetings)(105) to travel outside the State party, to restrict the
    entry into the State party of foreign journalists to those from specified countries (106) or to
    restrict freedom of movement of journalists and human rights investigators within the State
    party (including to conflict-affected locations, the sites of natural disasters and locations
    where there are allegations of human rights abuses). States parties should recognize and
    respect that element of the right of freedom of expression that embraces the limited
    journalistic privilege not to disclose information sources.(107)

    46. States parties should ensure that counter-terrorism measures are compatible with
    paragraph 3. Such offences as “encouragement of terrorism” (108) and “extremist activity” (109) as
    well as offences of “praising”, “glorifying”, or “justifying” terrorism, should be clearly
    defined to ensure that they do not lead to unnecessary or disproportionate interference with
    freedom of expression. Excessive restrictions on access to information must also be
    avoided. The media plays a crucial role in informing the public about acts of terrorism and
    its capacity to operate should not be unduly restricted. In this regard, journalists should not
    be penalized for carrying out their legitimate activities.

    47. Defamation laws must be crafted with care to ensure that they comply with
    paragraph 3, and that they do not serve, in practice, to stifle freedom of expression.(110) All
    such laws, in particular penal defamation laws, should include such defences as the defence
    of truth and they should not be applied with regard to those forms of expression that are
    not, of their nature, subject to verification. At least with regard to comments about public
    figures, consideration should be given to avoiding penalizing or otherwise rendering
    unlawful untrue statements that have been published in error but without malice.(111) In any
    event, a public interest in the subject matter of the criticism should be recognized as a
    defence. Care should be taken by States parties to avoid excessively punitive measures and
    penalties. Where relevant, States parties should place reasonable limits on the requirement
    for a defendant to reimburse the expenses of the successful party.(112) States parties should
    consider the decriminalization of defamation (113) and, in any case, the application of the
    criminal law should only be countenanced in the most serious of cases and imprisonment is
    never an appropriate penalty. It is impermissible for a State party to indict a person for
    criminal defamation but then not to proceed to trial expeditiously – such a practice has a
    chilling effect that may unduly restrict the exercise of freedom of expression of the person
    concerned and others.(114)

    48. Prohibitions of displays of lack of respect for a religion or other belief system,
    including blasphemy laws, are incompatible with the Covenant, except in the specific
    circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must
    also comply with the strict requirements of article 19, paragraph 3, as well as such articles
    as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to
    discriminate in favour of or against one or certain religions or belief systems, or their
    adherents over another, or religious believers over non-believers. Nor would it be
    permissible for such prohibitions to be used to prevent or punish criticism of religious
    leaders or commentary on religious doctrine and tenets of faith.(115)

    49. Laws that penalize the expression of opinions about historical facts are incompatible
    with the obligations that the Covenant imposes on States parties in relation to the respect for
    freedom of opinion and expression. (116) The Covenant does not permit general prohibition of
    expressions of an erroneous opinion or an incorrect interpretation of past events.
    Restrictions on the right of freedom of opinion should never be imposed and, with regard to
    freedom of expression, they should not go beyond what is permitted in paragraph 3 or
    required under article 20.

     

    The relationship between articles 19 and 20

    50. Articles 19 and 20 are compatible with and complement each other. The acts that are
    addressed in article 20 are all subject to restriction pursuant to article 19, paragraph 3. As
    such, a limitation that is justified on the basis of article 20 must also comply with article 19,
    paragraph 3.(117)

    51. What distinguishes the acts addressed in article 20 from other acts that may be
    subject to restriction under article 19, paragraph 3, is that for the acts addressed in article
    20, the Covenant indicates the specific response required from the State: their prohibition
    by law. It is only to this extent that article 20 may be considered as lex specialis with regard
    to article 19.

    52. It is only with regard to the specific forms of expression indicated in article 20 that
    States parties are obliged to have legal prohibitions. In every case in which the State
    restricts freedom of expression it is necessary to justify the prohibitions and their provisions
    in strict conformity with article 19.

     

     

    (1) See communication No. 1173/2003, Benhadj v. Algeria, Views adopted on 20 July 2007; No.
    628/1995, Park v. Republic of Korea, Views adopted on 5 July 1996.
    (2) See the Committee’s general comment No. 24 (1994) on issues relating to reservations made upon
    ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to the
    declarations under article 41 of the Covenant, Official Records of the General Assembly, Fiftieth
    Session, Supplement No. 40, vol. I (A/50/40 (Vol. I)), annex V.

    (3) See the Committee’s general comment No. 29 (2001) on derogation during a state of emergency,
    para. 13, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 40, vol. I
    (A/56/40 (Vol. I)), annex VI.
    (4) General comment No. 29, para. 11.
    (5) General comment No. 24.
    (6) See the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation
    imposed on States parties to the Covenant, para. 4, Official Records of the General Assembly, Fiftyninth
    Session, Supplement No. 40, vol. I (A/59/40 (Vol. I)), annex III
    (7) See communication No. 61/1979, Hertzberg et al. v. Finland, Views adopted on 2 April 1982.
    (8) General comment No. 31, para. 8; See communication No. 633/1995, Gauthier v. Canada, Views
    adopted on 7 April 1999.
    (9) See communication No. 550/93, Faurisson v. France, Views adopted on 8 November 1996.
    CCPR/C/GC/34

    (10) See communication No. 157/1983, Mpaka-Nsusu v. Zaire, Views adopted on 26 March 1986; No.
    414/1990, Mika Miha v. Equatorial Guinea, Views adopted on 8 July 1994.
    (11) See communication No. 878/1999, Kang v. Republic of Korea, Views adopted on 15 July 2003.
    (12) See communications Nos. 359/1989 and 385/1989, Ballantyne, Davidson and McIntyre v. Canada,
    Views adopted on 18 October 1990.
    (13) See communication No. 414/1990, Mika Miha v. Equatorial Guinea.
    (14) See communication No. 1189/2003, Fernando v. Sri Lanka, Views adopted on 31 March 2005.
    (15) See communication No. 1157/2003, Coleman v. Australia, Views adopted on 17 July 2006.
    (16) Concluding observations on Japan (CCPR/C/JPN/CO/5).
    (17) See communication No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005.
    (18) See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan, Views adopted on 19 March
    2009.
    (19) See communication No. 926/2000, Shin v. Republic of Korea, Views adopted on 16 March 2004.
    (20) See communication No. 736/97, Ross v. Canada, Views adopted on 18 October 2000.
    (21) Ibid.
    (22) Ibid.
    (23) See communication No. 926/2000, Shin v. Republic of Korea.
    (24) See communication No. 1341/2005, Zundel v. Canada, Views adopted on 20 March 2007.
    (25) See communication No. 1009/2001, Shchetoko et al. v. Belarus, Views adopted on 11 July 2006.
    (26) See communication No. 412/1990, Kivenmaa v. Finland, Views adopted on 31 March 1994.
    (27) See communication No. 1189/2003, Fernando v. Sri Lanka.
    (28) See communication No. 1128/2002, Marques v. Angola, Views adopted on 29 March 2005.

    (29) See communication No. 633/95, Gauthier v. Canada.
    (30) See the Committee’s general comment No. 25 (1996) on article 25 (Participation in public affairs and
    the right to vote), para. 25, Official Records of the General Assembly, Fifty-first Session, Supplement
    No. 40, vol. I (A/51/40 (Vol. I)), annex V.
    (31) See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan.
    (32) Concluding observations on Republic of Moldova (CCPR/CO/75/MDA).
    (33) See communication No. 633/95, Gauthier v. Canada.
    (34) See communication No. 1334/2004, Mavlonov and Sa’di v. Uzbekistan.

    (35) See communication No. 726/1996, Zheludkov v. Ukraine, Views adopted on 29 October 2002.
    (36) See the Committee’s general comment No. 32 (2007) on the right to equality before courts and
    tribunals and to a fair trial, para. 33, Official Records of the General Assembly, Sixty-second Session,
    Supplement No. 40, vol. I (A/62/40 (Vol. I)), annex VI
    (37) General comment No. 31.
    (38) See communication No. 1457/2006, Poma v. Peru, Views adopted on 27 March 2009.
    (39) Concluding observations on Azerbaijan (CCPR/C/79/Add.38 (1994)).
    (40) See General comment No. 25 on article 25 of the Covenant, para. 25.
    (41) See the Committee’s general comment No. 27 on article 12, Official Records of the General
    Assembly, Fifty-fifth Session, Supplement No. 40, vol. I (A/55/40 (Vol. I)), annex VI, sect. A

    (42) See communication No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005.
    (43) See the Committee’s general comment No. 22, Official Records of the General Assembly, Fortyeighth
    Session, Supplement No. 40 (A/48/40), annex VI
    (44) See communication No. 458/91, Mukong v. Cameroon, Views adopted on 21 July 1994.
    (45) See communication No. 1353/2005, Njaru v. Cameroon, Views adopted on 19 March 2007.
    (46) See, for instance, concluding observations on Algeria (CCPR/C/DZA/CO/3); concluding observations
    on Costa Rica (CCPR/C/CRI/CO/5); concluding observations on Sudan (CCPR/C/SDN/CO/3).
    (47) See communication No. 1353/2005, Njaru v. Cameroon ; concluding observations on Nicaragua
    (CCPR/C/NIC/CO/3); concluding observations on Tunisia (CCPR/C/TUN/CO/5); concluding
    observations on the Syrian Arab Republic (CCPR/CO/84/SYR); concluding observations on
    Colombia (CCPR/CO/80/COL).
    (48) Ibid. and concluding observations on Georgia (CCPR/C/GEO/CO/3).
    (49) Concluding observations on Guyana (CCPR/C/79/Add.121).
    (50) See communication No. 633/95, Gauthier v. Canada.
    (51) See communication No. 1373/2005, Dissanayake v. Sri Lanka, Views adopted on 22 July 2008.
    (52) See general comment No. 32.
    (53) See communication No. 578/1994, de Groot v. The Netherlands, Views adopted on 14 July 1995.
    (54) See general comment No. 27.

    (55) See communication No. 488/1992, Toonen v. Australia, Views adopted on 30 March 1994.
    (56) General comment No. 20, Official Records of the General Assembly, Forty-seventh Session,
    Supplement No. 40 (A/47/40), annex VI, sect. A.
    (57) See communication No. 1553/2007, Korneenko et al. v. Belarus, Views adopted on 31 October 2006.
    (58) See communication No. 132/1982, Jaona v. Madagascar, Views adopted on 1 April 1985.
    (59) See communication No. 927/2000, Svetik v. Belarus, Views adopted on 8 July 2004.
    (60) Ibid.
    (61) See communication No. 736/97, Ross v. Canada, Views adopted on 18 October 2000.
    (62) See communication No. 550/93, Faurisson v. France; concluding observations on Austria
    (CCPR/C/AUT/CO/4).
    (63) Concluding observations on Slovakia (CCPR/CO/78/SVK); concluding observations on Israel
    (CCPR/CO/78/ISR).
    (64) Concluding observations on Hong Kong (CCPR/C/HKG/CO/2).
    (65) Concluding observations on the Russian Federation (CCPR/CO/79/RUS).
    (66) Concluding observations on Uzbekistan (CCPR/CO/71/UZB).

    (67) See communication No. 518/1992, Sohn v. Republic of Korea, Views adopted on 18 March 1994.
    (68) See communication No. 1157/2003, Coleman v. Australia.
    (69) See communication No. 1373/2005, Dissanayake v. Sri Lanka.
    (70) See communication No. 359, 385/89, Ballantyne , Davidson and McIntyre v. Canada.
    (71) See communication No. 736/97, Ross v. Canada, Views adopted on 17 July 2006.
    (72) General comment No. 27, para. 14. See also Communications No. 1128/2002, Marques v. Angola;
    No. 1157/2003, Coleman v. Australia.
    (73) See communication No. 1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31
    October 2005.
    (74) See communication No. 926/2000, Shin v. Republic of Korea .

    (75) See communication No. 518/1992, Sohn v. Republic of Korea .
    (76) See communication No. 511/1992, Ilmari Länsman, et al. v. Finland, Views adopted on 14 October
    1993.
    (77) See communications Nos. 518/92, Sohn v. Republic of Korea; No. 926/2000, Shin v. Republic of
    Korea,.
    (78) Concluding observations on Japan (CCPR/C/JPN/CO/5).
    (79) Ibid.
    (80) Concluding observations on Tunisia (CCPR/C/TUN/CO/5).
    (81) Concluding observations on Togo (CCPR/CO/76/TGO); concluding observations on Moldova
    (CCPR/CO/75/MDA).
    (82) See communication No. 968/2001, Kim v. Republic of Korea, Views adopted on 14 March 1996.
    (83) See communication No. 1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31
    October 2005.
    (84) Ibid.
    (85) See communication No. 1128/2002, Marques v. Angola.
    (86) See communications Nos. 422-424/1990, Aduayom et al. v. Togo, Views adopted on 30 June 1994.
    (87) Concluding observations on the Dominican Republic (CCPR/CO/71/DOM).
    (88) Concluding observations on Honduras (CCPR/C/HND/CO/1).
    (89) See concluding observations on Zambia (CCPR/ZMB/CO/3), para.25.
    (90) See concluding observations on Costa Rica (CCPR/C/CRI/CO/5), para. 11.

    (91) Ibid., and see concluding observations on Tunisia (CCPR/C/TUN/CO/5), para. 91..
    (92) See concluding observations on Viet Nam (CCPR/CO/75/VNM), para. 18, and concluding
    observations on Lesotho (CCPR/CO/79/Add.106), para. 23.
    (93) Concluding observations on Gambia (CCPR/CO/75/GMB).
    (94) See concluding observations on Lebanon (CCPR/CO/79/Add.78), para. 25.
    (95) Concluding observations on Kuwait (CCPR/CO/69/KWT); concluding observations on Ukraine
    (CCPR/CO/73/UKR).
    (96) Concluding observations on Kyrgyzstan (CCPR/CO/69/KGZ).
    (97) Concluding observations on Ukraine (CCPR/CO/73/UKR).
    (98) Concluding observations on Lebanon (CCPR/CO/79/Add.78).
    (99) See concluding observations on Guyana (CCPR/CO/79/Add.121), para. 19; concluding observations
    on the Russian Federation (CCPR/CO/79/RUS); concluding observations on Viet Nam
    (CCPR/CO/75/VNM); concluding observations on Italy (CCPR/C/79/Add. 37).
    (100) See concluding observations on Lesotho (CCPR/CO/79/Add.106), para. 22.
    (101) Concluding observations on Ukraine (CCPR/CO/73/UKR).
    (102) Concluding observations on Sri Lanka (CCPR/CO/79/LKA); and see concluding observations on Togo (CCPR/CO/76/TGO), para. 17.
    (103) Concluding observations on Peru (CCPR/CO/70/PER).
    (104) Concluding observations on the Syrian Arab Republic (CCPR/CO/84/SYR).
    (105) Concluding observations on Uzbekistan (CCPR/CO/83/UZB); concluding observations on Morocco
    (CCPR/CO/82/MAR).
    (106) Concluding observations on Democratic People’s Republic of Korea (CCPR/CO/72/PRK).
    (107) Concluding observations on Kuwait (CCPR/CO/69/KWT).
    (108) Concluding observations on the United Kingdom of Great Britain and Northern Ireland
    (CCPR/C/GBR/CO/6).
    (109) Concluding observations on the Russian Federation (CCPR/CO/79/RUS).

    (110) Concluding observations on the United Kingdom of Great Britain and Northern Ireland
    (CCPR/C/GBR/CO/6).
    (111) Ibid.
    (112) Ibid.
    (113) Concluding observations on Italy (CCPR/C/ITA/CO/5); concluding observations on the Former
    Yugoslav Republic of Macedonia (CCPR/C/MKD/CO/2).
    (114) See communication No. 909/2000, Kankanamge v. Sri Lanka, Views adopted on 27 July 2004.
    (115) Concluding observations on the United Kingdom of Great Britain and Northern Ireland-the Crown
    Dependencies of Jersey, Guernsey and the Isle of Man (CCPR/C/79/Add.119). See also concluding
    observations on Kuwait (CCPR/CO/69/KWT).
    (116) So called “memory-laws”, see communication No. , No. 550/93, Faurisson v. France. See also
    concluding observations on Hungary (CCPR/C/HUN/CO/5) paragraph 19.

    (117) See communication No. 736/1997, Ross v. Canada, Views adopted on 18 October 2000.

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