Freedom of Expression: Danger of Abusing the Exceptions in Article 19 of the ICCPR
There has been some recent political turbulence in the Pacific where it has been reported that the Papua New Guinea (PNG) government has launched a crackdown on “subversive activity” on the Internet .
It made me think of the 19th Session of the Human Rights Council where an Expert Panel (“Panel”) convened to discuss Freedom of Expression on the Internet. Sweden successfully managed to get it on the Agenda and I wonder whether the Arab Spring Revolution and Occupy X movement made this easier to get on the Agenda.
One thing is certain, there can be no mistake that the Internet has evolved into something way beyond just a mere Network of Networks of Communication Portal but has totally redefined human society as we know it.
Recently, we were also alerted to a presentation by China to the Panel on behalf of Algeria, Bangladesh, Belarus, Burundi, Cambodia, Congo, Cuba, DPRK, Ethiopia, Iran, Laos, Malaysia, Mauritania, Myanmar, Namibia, Nicaragua, Pakistan, Palestine, Philippines, Russia, Saudi Arabia, Sri Lanka, Sudan, Turkmenistan, Venezuela, Vietnam, Uzbekistan, Yemen, Zimbabwe.
There is a lot of discussion, rhetoric, legalese on the Freedom of Expression and on Article 19 of the International Covenant on Civil and Political Rights (ICCPR) which not only talks about the right of freedom of expression but also the exceptions to the right which form the basis for “objectionable content”. Article 19 of the ICCPR expressly states that the freedom of expression is not absolute and the joint statement by China and others succintly pointed this out.
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.
In fact, Article 19 does give notion to special duties and responsibilities that it may be subject to certain restrictions such as for the respect of the rights and reputation of others, protection of national security, or of public order or of public health or morals.
There is no question against what is internationally agreed objectionable content which includes the like of Child Pornography, Hate Speech, Defamation, Direct and Public Incitement to commit Genocide, Advocacy of National, Racial and Religious Hatred, Incitement to discrimination, hostility and violence.
The world remembers how in 2011, the Egyptian government ordered service providers to shut down all international connections to the internet. The rise of the Arab Springs revolution from within Egypt, Tunisia and the fall of Gadaffi's stronghold in Tripoli and Libya have triggered changes in social consciousness, communities and societies where the world as we know it can never be the same again. The impact that it has had in triggering worldwide movements and social consciousness from Occupy Wall Street to countries all around the world have led Governments to feel threatened about the potential impact that such movements can have over nations and regions and we are seeing strict laws emerge all over the world to clamp down online democracy.
The creation of elite armies to hunt down dissidents on the internet as is in the case of Syria, Iran and Papua New Guinea and the alleged mistreatment of Ai Wei Wei by the Chinese Government makes me wonder about the exceptions within Article 19 of the ICCPR.
Globally we continue to witness the extraordinary muzzling of Freedom of Expression through justification of the flagrant abuse of the exceptions in Article 19 of the ICCPR. I am no expert and just an ordinary end user who has been watching the world go by from her humble home in a tiny country in the Pacific.
There are some countries in the world today that has its share of tyrannical rulers or usurpers who have created draconian anti-sedition legal instruments and are neither transparent nor accountable to the people that they govern. Some of these forms of government are known for their abuse of power and have a tendency to ignore existing checks and balance mechanisms and have fallen prey to poor governance. I have seen how some jurisdictions continuously promulgate State of Emergencies to justify the muzzling of Freedom of Expression or others continuously invoke the Doctrine of Necessity to hide behind the veil of National Security which is an exception under Article 19 of the ICCPR. At the same time, there are absolutely legitimate instances of national security where it is perfectly legitimate to temporarily suspend “Freedom of Expression”. It is to this end that there must be a level of education to allow ordinary end users like me to discern when it is “legitimate” or not. In a world where ordinary end users are able to receive and give information at breakneck speeds, the end user must be able to know what is “objectionable” in order to be a responsible global citizen. As end users, we need to be able to discern and make an assessment of what is “objectionable”. In China, there was much in the media about the alleged mistreatment of the Artist Ai Wei Wei and some of his art has nudity. It would appear that from China’s alleged disdains of this expression, that we can infer that China perceives this to go against “Public Order/ Ordre Public”, or the public moral in China. In February, 2012, I read with fascination of how Tunisian journalists were arrested for publishing a picture of Tunisian Real Madrid soccer player and a picture of a naked model Lena Gercke in a newspaper . It is apparent in China and Tunisia’s approach that the freedom of expression of Ai Wei Wei and the Tunisian journalists violated the public moral or odre public. Having said that, there are countries in the world whose public moral "accepts nudity" such as the tribal communities of parts of Africa and the Pacific and other countries where this is frowned upon due to the "public moral" in their societies. Take for example, Michaelangelo's "David" which is acclaimed to be a masterpiece of Renaissance culture between 1501 and 1504. There are numerous artifacts/carvings in Africa and the Pacific that show elements of “nudity”. In some countries, it would be a violation of the "public moral" and there are others who consider it to be a work of art. I remember going to watch the annual land diving ritual [this is the origin of the concept of Bungee jumping] in Pentecost Island in Vanuatu a few years ago where men would jump off a huge man made wooden tower from the top of a mountain with only a vine attached to his ankle as part of a male initiation rite. If a male has not jumped he is not considered a "man" in their society and can't speak in meetings etc. I was shocked because they were all naked. Friends of mine who went to do some brief work on the island were just as shocked as I was but after a while, we began to notice that for the locals, it was normal and has been engrained as a part of their culture. Of course, in some cities, if you were to walk naked in the city, you would be arrested on the spot. In Vanuatu, this is considered to be part of their culture and their identity and as such there is no issue of offending “public moral” and if anything it was we the visitors who were shocked. It follows therefore that public moral is relative and is part of the social fabric of a society. If anything, society tends to be the barometer of what is “objectionable”. Even the United States of America had racial discriminatory laws that bordered on absurd because “public moral” found it acceptable but when social consciousness started shifting, this eventually changed and today, USA has a black man as President which would have been completely unthinkable in the 1920s. I think in essence countries and people misinterpret Article 19 of the ICCPR and this is an inherent danger when they fail to consider what I feel is an often overlooked part of the ICCPR which is the "preamble" which gives context and fully explains the spirit in which Article 19 was carefully crafted. Part of the preamble states: "Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person, Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights, If we explore these building blocks that are mentioned in the preamble, we see the foundation is based on freedom, justice and peace where people can enjoy civil and political freedom from fear and want. It is worthwhile asking whether our systems reflect that. We see how in New Delhi (India)'s High Court, Justice Suresh Kait is reported to have said at an interlocutory hearing that Google and Facebook should develop a mechanism where they remove “offensive” and “objectionable” material lest they be blocked entirely like in China . Whilst the “public moral” is an exception under Article 19 of the ICCPR, the right of having lawful content which is not objectionable is a human right. One of the emerging issues in this regard is the danger of lawful content being filtered and how do we protect and safeguard this from happening. This lawful content if filtered is the muzzling of "freedom of expression". There is a 24th November, 2011 Judgment by the Court of Appeal in Belgium in Scarlet Extended v Societe belge des auteurs, compositeurs et editeurs SCRL (SABAM) where European Union law precludes the imposition of an injunction by a national court which requires an Internet Service Provider (ISP) to install a filtering system with a view to preventing the illegal downloading of files because of the customer’s right to privacy and the danger of blocking “lawful content”. To this end, the questions that we need to deal with when looking at Filters are whether there is a danger of filtering “lawful content”. What is the role of civil society, governments and private sector in ensuring that lawful content is not muzzled? What kind of Policies should be set in place? What kind of Standards should be set in place? What kind of debates do we need to engage or dialogue to tease out these issues?