البيان الذي أدلت به المفوضة السامية في المجلس الدائم لمنظمة الأمن والتعاون في أوروبا بشـأن حرية التعبير

3 July 2014

Excellencies,
Distinguished participants,
Ladies and gentlemen,

Thank you for this opportunity to address a topic that is the cornerstone of every democratic society. The rights to freedoms of opinion and expression are intertwined, together with the right to seek, receive and impart information. They are enabling rights — rights that empower individuals to argue for their due enjoyment of all other rights, from fair trials and free elections to decent living conditions. Conversely, obstacles to these freedoms undermine all other rights, including civil and political rights, economic, social and cultural rights, and the right to development.

The right to freedom of opinion, expression and information are enshrined in the Universal Declaration of Human Rights, as well as the International Covenant on Civil and Political Rights. Moreover, the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms ­– which was adopted by the General Assembly in 1998 – expressly states that everyone has the right to know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how these rights and freedoms are given effect in domestic legislative, judicial or administrative systems.

Furthermore, everyone has the right to freely disseminate views, information and knowledge on all human rights and fundamental freedoms.

My intention today is to discuss certain challenges that we face in ensuring freedom of expression. These are the protection of the fundamental freedoms of journalists and human rights defenders; issues related to the Internet; and, finally, the advocacy of national, racial or religious hatred, insofar as it constitutes incitement to discrimination, hostility or violence. This is a particularly controversial topic on which my Office has recently helped to produce a number of practical guidelines.

Protection of the democratic space: the media and human rights defenders

At its essence, democracy is about every person participating in decisions that affect their own lives. Sound and sustainable governance rely on inclusive decision-making processes throughout society, based on the rule of law, transparency, and the accountability of public authorities. These simply cannot be attained without adequate access to information and the right to express opinions. Combating corruption, for example, requires the adoption of procedures that allow members of the public to obtain information on the organisation, functioning and decision-making processes of administration.

In every corner of the world – including the long-standing democracies – there are complex challenges associated with freedom of expression. In the past decade, we have seen many people around the world advocating for change – for social justice, equality, accountability of the powerful and respect for human rights. The protests in North Africa and the Middle East, as well as cities across Europe and the Americas, are prominent examples.  Rather than engaging in dialogue to address the root concerns of protestors, several governments have adopted measures to restrict public freedoms. They have curtailed public liberties, restricted the media and the activities of civil society, and violently repressed peaceful protest.

In a number of countries, governments have also used security policies — including counter-terrorism strategies — as a pretext to restrict public freedoms and the role of civil society.

Elsewhere, the heightened political influence of religious doctrine or allegedly “traditional” values has led to restrictions on civil liberties and the media. This endangers pluralism and dialogue.

Yet human rights defenders, whistle-blowers and civil society activists pay an essential role in society, the economy and public administration. They bring to light issues that it is vital to address, in the interest of all – including governments. Individuals and groups who reveal deficiencies in systems, policies and structures should be rewarded for their positive contribution – not punished for endangering entrenched interests. Silencing criticism is not only a violation of human rights: it is counterproductive to the goal of achieving safe, just, stable – and therefore prosperous – societies.

Journalists are also essential to democracy, by ensuring transparency and accountability in the conduct of public affairs and other matters of public interest. But precisely because of this crucial role, they are frequently subject to violations of their fundamental human rights, including abduction, arbitrary detention, enforced disappearance, expulsion, harassment, killing, surveillance, search and seizure, torture and threats. Censorship is another widespread violation that quite simply negates the meaning of a free press. Female journalists face additional risks, including being subjected to forms of sexual violence.

These threats and attacks are committed by both State and non-State actors in order to silence journalists and undermine the free flow of information.

Similarly, politicized appointments processes for media regulatory bodies, and their sometimes extensive power over content in the media, can lead to censorship or to self-censorship. They have a profound impact on the ability of citizens to contribute to democratic processes by means of informed decisions. Moreover, in many countries, criminal laws against slander, libel and defamation are used to deter reporting on issues of public interest and to silence criticism of public figures. Counter-terrorism legislation and other laws allegedly protecting national security may also unduly restrict the vital freedoms of the press.

We should also note that in countries that have historically experienced serious and systematic human rights violations, access to information about past abuses can be a central issue in the search to address the past. It may present a significant challenge for journalists, as well as in the transitional justice process.

It must therefore be emphasized that the overarching notion regarding freedom of expression and information in international law is that all information in the possession of the State belongs to the public. There are limited and qualified exceptions, but whenever a State imposes restrictions on the exercise of the right to freedom of expression, such restrictions must be demonstrably necessary and proportional. They must also be defined by law, in terms that are accessible, concrete, clear and unambiguous, and must be open for prompt, comprehensive and effective judicial review.

Enlarging, widening and deepening people’s participation in local, national and global processes is the way forward to societies that are stable and just. In order to support the maintenance of a dynamic and independent press and civil society activism, and to work to strengthen rules and laws relating to freedoms of expression, association and assembly, my Office has made widening the democratic space a key focus for the next four years.

Protection of the democratic space: the Internet

I would like now to turn to a related, but very specific media. New technologies offer a variety of opportunities for journalists, activists and institutions to expand the democratic space. But they also carry with them additional human rights challenges. The Internet is an indispensable tool for people to receive and provide information, and makes it far more difficult for States to exercise control over information.

But perhaps unsurprisingly, this has resulted in attempts to unduly restrict access to online content. This is of deep concern. As the Human Rights Council affirmed in its landmark resolution 20/8 on Human Rights on the Internet, the right to freedom of expression and opinion of individuals should be protected and promoted in the online space in the same manner as in the offline world.

Another challenge resides in the fact that since information is more accessible on the Internet, it makes some people more vulnerable to attack. Human rights defenders who legitimately exercise their right to freedom of expression online continue to be arbitrarily detained, tortured and unjustly sentenced to imprisonment on the pretext of protecting national security or countering terrorism.

Policy regarding the Internet must be guided by due regard for the user’s rights to access and disseminate information. There must be safeguards to ensure that any restrictions to access are neither arbitrary nor excessive. In addition, new technologies are vulnerable to mass electronic surveillance and interception by States and corporations. This threatens individual rights and inhibits the free functioning of a vibrant civil society. During upcoming sessions of the Human Rights Council and the General Assembly my Office will report on the right to privacy in the context of domestic and extraterritorial surveillance and interception of digital communications and collection of personal data.

Incitement to hatred

Excellencies,

Speech can be an incitement to action — in some cases, very violent and hateful action. And unlike international norms regarding genocide, torture, slavery and crimes against humanity, the right to freedom of expression is not absolute. Article 19 of the International Covenant on Civil and Political Rights allows certain restrictions when they are necessary for respect of the rights or reputations of others, or for the protection of national security, public order or of public health or morals. 

In addition, article 20 of the Covenant actually requires the prohibition of propaganda for war, and “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

I recall a case that I heard in 1998, when I was a judge on the International Criminal Tribunal for Rwanda. This was really a worst-case scenario: people working at a radio station and a newspaper had quite outright called for massacres, using very unambiguous words. More recently, we have seen examples of media outlets advocating attacks on individuals because of their sexual orientation, and a series of uproars over several forms of media criticising people of various religions. A number of these incidents have unfortunately led to unacceptable violent reactions and deaths -- including of UN personnel, I might add. It is because of cases like these, where speech can be clearly linked to wrongful action, that international law requires states to ban certain forms of expression that incite violence, hatred and discrimination.

Any action in response to such incitement to hatred must be extremely careful and precise, because – and I must again stress this point – the overarching principle is that expression should be free. Although there is a need to combat discrimination and hatred, laws may not be misused by the authorities to silence critics and muzzle minorities and dissenters.

There are a number of challenges here. The first is definition.Intolerance and even intense dislike of others may in some contexts be quite legitimate emotions — for example when we criticize people who have oppressed vulnerable people. So when is the expression of hatred permissible, and when is it prohibited? How do we draw a distinction between hate speech and speech that is merely offensive?

Clearly, severity and context are key factors. How likely is it that harm will occur, and how imminent is that threat? Is the speaker in a position of authority, with leadership of millions, or a lone individual?  Is there a long history of violence and persecution that hate speech should re-ignite? 

Another suggestion is to draw a clear line between expression targeting ideas — which is to be protected — and on the other hand, abusive expression that targets human beings, which may in some cases need to be prohibited. The UN Human Rights Committee has clarified that 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”. Consequently, the Committee has expressed concern regarding laws on issues such as lèse majesty, desacato, disrespect for authority, disrespect for flags and symbols, defamation of the head of state and the protection of the honour of public officials.

A related challenge now arises: the notion of “defamation of religion”, which has risen to the fore over the past decade, with repeated challenges to various forms of speech on the grounds that they offend certain believers or belief systems.

The position of the Office of the United Nations High Commissioner for Human Rights is clear. Human rights law protects individuals and groups, not belief systems. You cannot defame a religion. In fact, it should be possible to scrutinise, openly debate, and even harshly criticise religions or belief systems, doctrine, institutions and leaders, including religious ones. This is absolutely intrinsic to the right to freedom of expression.

Blasphemy laws inhibit freedom of religion or belief, as well as healthy dialogue and debate, and States that still have such laws should repeal them. At the same time, hate speech that is directed against members of specific religious groups can be extremely inflammatory and likely to incite violence: in such cases, governments are obliged to intervene.

In order to bring additional clarity to this discussion, my Office recently organised a series of five high-level expert workshops, in all regions of the world, with a view to examine legislative patterns, judicial practices and policies in the field of incitement to hatred and to discuss how best to respond to such issues in accordance with the freedom of expression. These workshops involved three UN Special Rapporteurs — on Freedom of Opinion and Expression, Freedom of Religion or Belief, and Racism, Racial Discrimination, Xenophobia and Related Intolerance — as well as 45 experts from different cultural backgrounds and legal traditions.

They culminated in an expert meeting in Rabat in October 2012 that adopted a comprehensive Plan of Action. This uses the full potential of existing international law to issue guidance to all stakeholders — states, parliaments and judiciary, civil society activists, media and regional and international organisations. In fact, one of its recommendations is to further enhance cooperation and information-sharing, both among various regional and cross-regional mechanisms – such as the Council of Europe, the Organization for Security and Co-operation in Europe, the European Union and others – and between these organizations and the UN.

Along with detailed advice, the Rabat Plan of Action offers a six-part threshold test that must be met for speech to be criminally prohibited. They include context; the speaker's standing; intent to advocate or incite; content; scope or extent; and imminence. It also points out that criminal  sanctions  related  to  unlawful  forms  of expression  should  be  seen  as  “last  resort”  measures,  to  be  applied  only in  strictly  justifiable  situations.  Civil  sanctions  and  remedies  should  also  be  considered,  including  financial  and  non-financial damages,  along  with  the  right  of  correction  and  the  right  of  reply.

But the Rabat Plan of Action will not, alone, achieve this task of constructing a solid framework for a society of diversity and tolerance, in a society where old boundaries are crumbling.

Can people of different backgrounds, history and religion live together, and remain true to themselves, without pushing others away? As globalisation and migration intensify, all of us will encounter more people from other cultures, or who hold very different opinions from ourselves, it may be a very real challenge to learn to respect fully each others' beliefs and choices.

Tolerance is needed, both across society and in our personal relations.  This implies more than the passive enduring of ideas different from our own.

Conceived more actively, tolerance is the positive and respectful effort to understand and defend another’s beliefs, practices, and habits – without necessarily sharing them. We must embrace and defend the right of others to speak freely and disagree with us.

Thank you. I look forward to our discussions.

- 20 minutes