Generally speaking, international law permits limited restrictions on the right to freedom of expression to protect various interests; however, as a principle, the legitimacy of any restriction to this fundamental right should be assessed according to international standards. All international documents such as the Universal Declaration for Human Rights (UDHR), International Covenant for Civil and Political Rights (ICCPR), European Convention, American Convention, and African Charter propose a "three-part test" to determine the legitimacy of restrictions on freedom of expression. All courts in the countries that have ratified these documents are obliged to apply this three-part test when dealing with cases related to freedom of expression.
The first part of this test requires that the restriction be prescribed by law, the second to serve a legitimate purpose, and the third to be "necessary in a democratic society." Although the wording of the requirements needed to assess the legitimacy of the restrictions may vary from one international document to another, still they are all concerned with the three parts. In the UDHR article 29(2) there is a specific assertion that the restrictions be only "for the purpose of securing due recognition and respect . . . in a democratic society," while ICCPR article 19(3) states that the restrictions should be "provided by law" and "necessary for respect of the rights and reputation of others," and for the "protection of national security" or of "public order," or of "public health and morals."
Also, paragraph 2 of article 10 of the European Convention of Human Rights requires the limitations to be prescribed by law, necessary in a democratic society, and in pursuit on one of the specified aims. Paragraph 2 includes other restrictions like in the interest of "national security," "territorial integrity," "public safety, "prevention of order or crime," for the "protection of health or morals," for the "protection of the reputation or the rights of others," for "preventing the disclosure of information received in confidence," or for "maintaining the authority and impartiality of the judiciary."
In the UDHR, ICCPR and ECHR one can find specific emphasis on the importance of assessing the legitimacy of the restrictions in a "democratic society." Since the list of interests that require protection, such as national security or public order or public morals are all of a broad nature, and difficult to be defined, they vary from one society to another, and from one political system to another.
Accordingly, the level of democracy in a society should be the standard upon which the legitimacy is measured.
Moreover, the Johannesburg principles were specially produced as an effort to provide for a "clear recognition of the limited scope of restrictions on freedom of expression and freedom of information that may be imposed in the interest of national security, so as to discourage governments from using the pretext of national security to place un justified restrictions on the exercise of these freedoms."
Based on the Johannesburg principles:
No restriction on freedom of expression or information on the ground of national security may be imposed unless the government can demonstrate that the restriction is prescribed by law and is necessary in a democratic society to protect a legitimate national security interest. The burden of demonstrating the validity of the restriction rests with the government.
Since the three parts test is of great importance in dealing with freedom of opinion and expression cases, the following section will elaborate more on each of the three parts of this test.
A. Prescribed by Law
The first part of the freedom of expression test requires that the restrictions be prescribed by law. "The law must be accessible, unambiguous, drawn narrowly and with precision." The law also should provide for "adequate safeguards against abuse, including prompt, full and effective scrutiny of the validity of the restriction by an independent court or tribunal." This test is known as "the test of foreseeabililty" as the law must be formulated in a manner that individuals are able to foresee the circumstances resulting from a certain action.
B. Protection of a Legitimate Aim
The second requirement of the three-part test is to determine whether the restriction is for one of the specified legitimate aims or not, such as, the interests of national security, the interests of territorial integrity, the interests of public safety, the prevention of disorder or crime, the protection of health and morals, and the protection of the rights and freedoms of others. States have always found it not difficult to place its interference under one of these exceptions; therefore, the European Court for example has adopted a precise approach to the issues of "necessity" and "proportionality" in determining the legitimacy of the aims. Also, the Special Rapportuer asserts the importance of the principle of proportionality in the process of determining whether any limitation on the right to freedom of expression is necessary or not.
1. Protection of National Security
A restriction based on the grounds of national security is legitimate only if it is for the protection of the "countries existence, or its territorial integrity against the use or threat of force" either from an external source such as a military threat or internal source such as "incitement to violent overthrow of the government." The European Court has considered the government interference in a number of cases from Turkey related to the South- Eastern part, as legitimate for the protection of national security. On the other hand, protection of governments from “embarrassment or exposure or malfunctioning” is not considered as protection of national security.
2. Protection of Public Order and Public Safety
The notion of public order is in itself a vague notion; therefore the Special Rapporteur prefers the narrow term of "prevention of disorder and crime" used in the European Convention. He also has asserted that any restriction to freedom of opinion and expression claiming to be for the protection of public order should "meet strict requirements indicating its necessity." According to some political analysts, the state could only use the justification of protecting public order on the basis of a contractual relationship between the states and its citizens. This relationship is based on three aspects: legitimacy, justice, and neutrality. Accordingly, the state could claim to be protecting public order only if it is legitimate, and its institutions, leaders, and elite were elected in fair elections with the approval of the majority. Another aspect is justice in its legal meaning; a state cannot claim to protect public order if it is not committed to the principle of the rule of law where all citizens are equal before law, and to the principle of separation between powers. The state also should be committed to the principle of neutrality towards the pluralism of its society, not to differentiate between citizens on basis of sex, religion, language, or origin. Only if states are committed to these principles, can they be authorized to protect public order.
3. Protection of Health and Morals
According to the Special Rapporteur, states are allowed to prohibit misleading publications on health, or negative practices such as female genital mutilation, bride burning, and related matters. Regarding morals, the Special Rapporteur emphasizes the fact that morals differ widely from culture to culture and from place to place, therefore a margin of appreciation should be left for states. However, he notes that, "restrictions applied on the freedom of expression should not be applied in such a manner as to promote prejudice and intolerance." He also asserts "the importance to protect the freedom of expression of minority views including those views that might be offensive or disturbing to a majority." The case of Handyside is a well known case regarding the protection of morals.
4. Protection of the Rights or Freedoms of Others
The protection of the rights and freedoms of others is an often used limitation to justify restrictions on freedom of expression. It includes protection of reputation, protection of religious feelings, and protection of minorities. In Otto-Perminger Institute, the showing of a film was considered a violation of the right to respect religious feelings within articles 9 and 10 of the European Convention.
C. Necessary in a Democratic Society
This is the third part of the freedom of expression test, and it is considered to be the "Basic Test." In this test it is required to prove that the measures taken respond to a pressing social need. To be able to establish this test, courts should pay attention to the principles and qualities characterizing a "democratic society," which are agreed to be "pluralism, tolerance, broadmindedness, equality, liberty, and encouraging self-fulfillment."
Regarding the freedom of expression's three- part test, one can find a wide range of guiding jurisprudence developed mainly by the European Court of Human Rights. The Court emphasizes that when assessing a certain restriction, it is not judging regarding "a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted." The court has also stated in the well known case of Handyside v. United Kingdom that in order to see a restriction as "necessary," a "pressing social need" must be recognized, and reasons provided to justify the restriction must be relevant and sufficient. The European Court of Human Rights in more than one case has repeatedly stated that:
Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man . . . it is applicable not only to information or ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no 'democratic society'.
In specific cases of countries, the Supreme Court of India in the case of Rangarajan v. Jagjivan Ram and Ors declared its commitment to freedom of expression by refusing to balance this fundamental right and any social interests:
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression.
In addition to India, the High Court of Sierra Leone has ruled in a press freedom case that "[It] is the duty of the press to call attention to the weakness of the Government when it is done for the public good." And, the Judicial Committee of the Privy Council has stated that "in a free and democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism"
Regarding defamation charges, there has been an increasing body of jurisprudence supporting the principle that "criminal defamation is itself a breach of the right to freedom of expression." For instance, the UN Special Rapporteur on Freedom of Opinion and Expression has stated that "Sanctions for defamation should not be so large as to exert a chilling effect on freedom of opinion and expression and the right to seek, receive and impart information; penal sanctions, in particular imprisonment, should never be applied."
Moreover, the three special international mandates for promoting freedom of expression -the Special Rapporteur, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression- have repeatedly called in more than one joint declaration on all states to abolish their criminal defamation laws. In the 2002 joint declaration they stated: "criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws."
Also, The European Court has issued a number of judgments asserting that "the limits of acceptable criticism are . . . wider as regards a politician as such as regards private individuals." The Court also emphasized the importance of differentiating between facts and value judgments, as facts can be proved but value judgments can not. In the case of Lingens v. Austria the court stated that the defendant should not be required to prove the truth of his opinions, and that this requirement is in itself a violation of the right to freedom of expression.
On the other hand, regarding the issue of who has the right to file a defamation lawsuit, the Human Rights Committee has stated in its observations on countries periodic reports that it condemns the existence of the offence of "defamation of the state" and has called for its abolition. Also, a number of National Courts such as the High Court of Barbados have held that "Published statements made in good faith about a matter of public interest are protected by the defense of fair comment."
Moreover, regarding the two most widely used government claims for restricting freedom of expression, protection of "national security" and "public order," one can find a number of useful court decisions on how to reject these governmental claims. In cases related to national security, a major distinction can be drawn between a threat to a state's territory or national integrity, and a threat to a particular government.
One can claim that, the most serious human rights violations and fundamental freedoms are often justified by governments as necessary to protect national security. In most countries political leaders appoint themselves as being in charge of defining the countries' "national interest" or "security threat," and based on their own perception they start violating human rights. "Even in liberal democracies, perceptions of national insecurity can rapidly destroy citizen support for international law and democratic values." These definitions of "national security" are often not clear, and there are a number of questions that should be asked in that context such as, "security for whom," is it for the citizens, the government, the states territory or borders. It is also important to clearly determine "security from whom," as the perception of the source of the alleged threat is essential in determining its seriousness. Equally important is the question of "security by whom," as usually the executive authority excludes other authorities from such decisions.
One can claim that the US "war on terror" is an example of how governments violate human rights on the basis of insecurity perceptions.
The Bush Administration after September 11 has redefined the standards of interrogation, and is being dealt with as "a very highly classified area." Administration lawyers advised Bush that he doesn’t have to comply with the Geneva Conventions in dealing with detainees and suspects, for they are not classified as "civilians or prisoners of war", instead they are classified as "illegal enemy combatants." One of these lawyers Mr. John C. Yoo was even bold enough to claim that "there is a category of behavior not covered by the legal system," and that the classifications of the Geneva Conventions of "civilian" or "soldier" is not accurate.
Regarding the misuse of fighting terrorism laws, the Special Rapporteur for freedom of opinion and expression notes that:
[M]any governments use anti – terrorism and national security legislation to restrict, partially or totally, freedom of opinion and expression and the right of access to information. Abuse of powers and prerogatives granted under such laws often leads to both prolonged and short-term arbitrary detention; torture; extrajudicial, summary or arbitrary executions; disappearances; threats and intimidations; the closure of various media enterprises; the banning of publications; bans on public gatherings; bans and prohibitions on organizations and groups that are not associated with terrorism ; censorship on forms of communication; and judicial lenience for the abuses and crimes committed by the police, armed forces and paramilitary groups.
In addition, the Special Rapporteur during visits to various countries and in discussions with government representatives,
has taken up the issue of national security laws and encouraged the Governments either to repeal the law and consider other measures consistent with article 19 of the Covenant for the protection of the State's national security interests, or to amend the relevant law or laws to ensure a precise and unambiguous definition of the activities and crimes covered by the legislation.
In a case from Spain, where a journalist was sentenced to two years in prison for publishing a communiqué from ETA defending its terrorist activities, the Spanish Constitutional Court rejected the conviction, and held that the Supreme Court that upheld the conviction had failed to differentiate between supporting terrorism and reproducing a communiqué written by someone else other than the publisher. The Court stated that the journalist has a right to inform his readers, and the readers have a right to receive full information, and that those who transmit information cannot be criminalized.
On the other hand, the Human Rights Committee has stated in a number of decisions that the burden to prove the "necessity" of imprisonment of a journalist for the interest of "public order" lies on the shoulder of the governments within the standards set by the ICCPR's art 19 (3). Also, the European Court of Human Rights has prohibited punishment for criticizing governments stating in the case of Castells V. Spain that "governments are required to tolerate an even greater degree of scrutiny and criticism than politicians." The Court also stated in the case of Thorgeirson v. Iceland that, "a person should not be held liable for publishing allegations, especially regarding matters of serious public concern that are based on public opinion, rumors, stories or statements of others , so long as the nature of factual support for the allegations is clearly stated."
Generally speaking, there are always a number of sensitive issues that states are not ready to tolerate. In such cases these states justify violation of rights under circumstances of "national security", or "public order." For example, clashes and conflicts regarding freedom of expression often happen along religious and ethnic conflicts, especially when an intolerant majority group tries to silence protests or means of expression of a minority. For instance Turkey is often sensitive regarding ethnic minorities specially Kurds. There have been a number of cases filed against Turkey at the European Court of Human Rights, where applicants are claiming violation of the freedom of expression under article 10 of the European Convention.
Most of the Turkish cases are related to the Kurdish problem. In the case of Alinak v. Turkey, the applicant wrote a novel based on true events that happened in a Turkish village where the villagers Kurds were tortured and abused by Turkish security forces. The applicant's book was confiscated by the public prosecutor who argued that the book was "promoting hatred and hostility by making distinctions between Turkish citizens based on the ground of their ethnic or regional identity." Moreover, Mr. Alinak was to be convicted under the Prevention of Terrorism Act. In another case from Turkey, Halis v. Turkey, the applicant Mr. Halis is a journalist who published an article reviewing four books by different authors discussing the problems of the south -eastern region in Turkey. One of the books was written by Abdallah Oklan the leader of PKK. Mr. Halis was sentenced to one year in prison and fined four hundred million Turkish liras under the Terrorism Act for "disseminating propaganda about an illegal separatist terrorist organization." Also, in Sener v. Turkey, the applicant published an article that was considered by the Turkish authorities as "contain[ing] separatist propaganda referring to a certain part of the Turkish territory as Kurdistan." She was sentenced to a six month imprisonment, and fined fifty million liras, and the publication was confiscated.
In the three cases from Turkey, the European Court held that there is a violation of article 10 of the Convention, and that the interference of Turkey in the right of freedom of expression is not acceptable despite its being for a legitimate aim. In the government's opinion the first applicant's novel "insulted the security forces and was capable of setting people against these forces," and that the seizure was for "preventing disorder and crime." In the second case Mr. Halis's article was "a direct incitement to further violence," and in the Sener case the interference was to maintain "national security" and public safety" as the government believed that this article is encouraging terrorist violence against the state. Thus, in the government's opinion its interference in the three cases was for a legitimate aim, and was also prescribed by law under the Turkish Terrorism Act of 1991.
The main reasoning of the European Court in these three cases was that despite the fact that Turkey's interference has a legitimate aim -due to the sensitivity of the situation in the south eastern part, the interference was not necessary in a democratic society, and it was disproportionate to the aims pursued. In addition, the court argued that the authorities failed to give sufficient weight to the public's right to be informed of a different perspective on the situation of south – east Turkey, even if this perspective was disagreeable to them.
The German cases are also similar to those in Turkey, as Germany often considers issues such as the denial of the Holocaust and World War Two, as sensitive issues that do not fall under the protection of the right to freedom of opinion and expression. In a case from the Constitutional Court of Germany, BVerfGE 90,241, the Court rejected a compliant from an association claiming violation of article 5, freedom of expression, of the German Constitution. This association invited a right wing historian to deliver a speech that was interrupted by the "Meeting Authority" as they believed that the lecturer was going to mention the subject of the denial of the Holocaust which is a crime under the German Criminal Code. The Court in this case reasoned that "an assertion of fact known or proved to be untrue is not covered by the protection of freedom of opinion." The Court also considered the prohibited statement "that there was no persecution of Jews in the Third Reich" as an insult addressed to Jews. In the Court's opinion freedom of opinion and expression is not entitled priority over protection of the personality, and that protection of personality, will prevail over freedom of opinion and expression.
However, in another German case BVerfGE 90,1 a book titled "Truth for Germany : the Question of Guilt in the Second World War," was banned from distribution to children and young people as it was considered to be "literature endangering young people." Unlike the previous case, the Constitutional Court cancelled the decision of the banning. The Court's main reasoning was that the writer's opinion regarding "war guilt" was a "value judgment," and in the courts opinion "value judgments are protected without any question as to whether the statement is valuable or valueless, right or wrong, emotional or rational." The Court also emphasized the difficulty in differentiating between "value judgments" and "assertion of facts," since "the two forms of statements are often linked to each other, and only together do they make up the sense of the statement. In such cases, the concept of opinion is to be understood widely in the interest of an effective protection of the basic right." In addition, the Court stressed the importance of discussing different views in the democratic society, as "young people can only become mature citizens if their capacity to criticize is strengthened in discussions based on differing opinions."
One can also differentiate between the performances of judiciary in certain historical contexts related to States national policies.
In the case of United States v. O'Brien there was a general intolerance regarding protestors to the Vietnam War, so when Mr. O'Brien burned his draft card (selective service registration certificate) on the steps of the South Boston Court House as a means to express his objection to Vietnam War, he was tried and convicted. The Constitutional Court considered that by burning willfully his draft card, - which in the court's opinion is of great importance as means of providing proof for registration, and facilitating communication between registrants and local board- O'Brien has "frustrated the government interests," and that "there is a sufficient governmental interest in his conviction."
While in United States v. O'Brien the Court considered "government interests" as perceived at that time to be more important than freedom of expression, in the case of Cohen v. California, Mr. Cohen was wearing a jacket with the words "Fuck the Draft," and was arrested and imprisoned. His behavior was seen as having a tendency "to provoke others to acts of violence or to disturb peace." The Court unlike the Case of O'Brien ruled in favor of freedom of expression and stated that:
The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.
Finally, one can claim that, when opinions and forms of expression oppose states national policies, states are more likely to violate the right of freedom of opinion and expression even if it is clearly guaranteed in their constitutions. This is despite the fact that that national security should mean that the state is committed to providing more security for its citizens which "implies more rights, not less." Governments change over time, and national polices also change according to for various freedoms and human rights. The US in its War on Terror is repeating the experience of France in Algeria, as the human rights violations of the French in Algeria have cost them a lot regarding their reputation and credibility. The United States is also damaging its reputation as the "champion of human rights" under the same justification of the "necessity of protecting a superior nation."
One can conclude, from all the above-mentioned international and comparative decisions, that the right to freedom of opinion and expression –including press freedom – is an essential right, and despite the fact that international law permits limited restrictions, these restrictions should be interpreted narrowly and justified strictly in favor of freedom of expression by the various international and local courts judging cases of press freedom. Thus, there is great responsibility on the shoulders of judiciary and legal systems in safeguarding rights and freedoms.
PRESS FREEDOM IN EGYPT
I. Limitations and Restrictions on the Right to Freedom of Expression including
II. Press and Publishing Legislation in Egypt: Restricting Freedoms Through
III. New Tools for Coercion: Intimidating Journalists through Litigation