Defining Freedom of Expression and Information and Resulting Issues.

In January 2015 Charlie Hebdo, a French satirical weekly magazine, was the focus of the world. Its offices were attacked by violent extremist’s gunmen resulting in a massacre. It is widely believed that the attack was motivated by the magazines publication of cartoons containing satirical depictions of the Prophet Mohammed. As the Western World stood in solidarity with France condemning the attack, Islamic communities throughout the world gradually became aware of the publication of the cartoons. Consequently, there were passionate expressions of distress and anger from Muslims all over the world, mainly on the ground that Islam does not allow pictorial representations of the Prophet. Demonstrations resulting in loss of life in the African countries of Algeria, Somalia and Niger followed, whilst the cartoons were reprinted by a number of newspapers in other countries in support of the original publishers.
The complex issues of a clash between two opposing views of freedom of expression have arisen. One view is that what occurred was simply an exercise of a right of freedom of expression that is central to the effective working of democratic society. The other, as expressed by critics of the publication of the cartoons, is that there are limits to freedom of expression, and that one of these is the denigration of religion and through that the insulting of a community of religious people. The central concern in this article is whether there are limits to freedom of expression and how can these limits be defined? Affected was the issue of providing access to the widest possible range of information and ideas for communities whatever their beliefs.

Freedom of information and expression are rights that are more often than not, spoken in the same breath. In fact the United Nations Universal Declaration of Human Rights (1947), under Article 19 contains the most widely accepted formulation of the right of free expression, which makes a natural interwoven link to freedom of information. “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.”

Therefore whenever matters of freedom of expression are affected, matters of freedom of information are usually not spared. The wording in Article 19 defines the right to freedom of expression and information not as a private right but as a public right. This right is also under Article 19 similarly guaranteed in the International Covenant on Civil and Political Rights (ICCPR) and three regional human rights treaties, specifically at Article 13 of the American Convention on Human Rights, at Article 10 of the European Convention on Human Rights (ECHR) and at Article 9 of the African Charter on Human and Peoples’ Rights (ACHPR).

To comprehensively understand the right to information and expression, one has to see the rationale of these rights. Human rights exist because they tear into the very fiber of mankind. The Preamble to the Universal Declaration sets human rights in the context of ‘the inherent dignity’ as well as ‘the equal and inalienable rights of all members of the human family’. This concept of the human dignity applying equally to all is thus intended to pervade the whole of the Universal Declaration.

The freedom of expression is a pivotal component of our individual development – as human beings and to improve democracies. In the Declaration of Principles on Freedom of Expression in Africa adopted in 2002, the African Commission on Human and Peoples Rights similarly stressed “the key role of the media and other means of communication in ensuring full respect for freedom of expression, in promoting the free flow of information and ideas, in assisting people to make informed decisions and in facilitating and strengthening democracy”.

However it would be presumptuous to assume that these rights are absolute. In many instances they are limited. The European Convention on Human Rights, Article 10 limits freedom of expression and information to extent that; “…these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary…”

The identification and definition of limitations to freedom of expression is, as implied above, a dangerous business. Done rashly it threatens to undermine the whole structure. Yet it is a fundamental principle expressed in Article 29 of the Universal Declaration that such limitations do exist. They are expressed in terms of ‘duties to the community’ and their scope is constrained in general terms by considerations that include respect for the rights of others.
“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of a democratic society.”

Key statements on freedom of expression, such as Article 10 of the European Convention on Human Rights, identify limitations and thus effectively compromise the principle. This is unlikely to be sufficient to satisfy both parties in disputes over the more difficult aspects of any given right or group of rights, as the French Charlie Hebdo cartoons affair amply illustrates. Ambiguity of law has always amplified disputes. A clear conscience definition of freedom of expression separate from freedom of information is obviously required.

It is clearly not the recognition of limitations that is the main issue, but the precise application of limitations. The problem is that whilst anyone can form a personal view of where the limitations lie in a given clash of laws or rights, it is the courts of law that should be the forum in which a decision is made. Thus, the treaties place the responsibility in the hands of the legislators and the use of the principles of law and rights lies on the judiciary.
Additionally, tolerance in society should be encouraged. Tolerance is necessary to avoid conflict; respects the value of autonomy; encourages diversity, which helps us discover better ways to live and leads to social progress. Just because you can does not mean you should. Freedom of expression has been a pressing issue in Africa. The African Court for Human and People Rights has established freedom of expression as a key freedom required for sustaining a democracy. The Court has in the recent Konte vs Burkina Faso matter highlighted how denied freedom of expression in Africa leads towards impunity and bad governance. However with every right comes responsibility and therein is the need for a limitation on the right to freedom of expression so as to prevent the destructive and regressive effect it could have.

Individuals in different nations all play a role to facilitate public access to information. This includes the products of the human imagination. A cartoon is thus just as much a concern of any individual and they have the right to access that information. Even where it is the source of passionate dispute, as was the case with the Charlie Hebdo cartoons; public and private authorities still have a basic professional duty to ensure that legally published material is available to those who might wish to consult it. Granted; we may need to define clear limitations and strike a balance without abandoning the principle of free access to information.

By
Peter Katonene Mwesigwa
Legal and Research Officer
Africa Freedom of Information Centre

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