MOOC FOE1x | 3.5.1 The Three Part Test: Necessary | Legitimate Restrictions to Freedom of Expression

MOOC FOE1x | 3.5.1 The Three Part Test: Necessary | Legitimate Restrictions to Freedom of Expression

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– This week we are considering
the legitimate restriction to freedom of expression under international human rights standard. The question we are asking is under which condition can restricting
free speech be legitimate? The answer to this questions may be found in the provision itself
regarding freedom of expression, which includes the so
called three part test. In the previous segments, we have reviewed the first two steps: legality and the valid grounds. In this segment, we will consider the third
step: the test of necessity, which by all definition is probably the most important one
in that three part test. Let’s recall again the
text of the provision, and you can see that on your screen. The exercise of the right provided for in paragraph two of this article carries with it special
duties and responsibilities. It may therefore be subject
to certain restrictions, but these shall only be as such as are provided by law and are necessary. And then the list of valid grounds. The test of necessity has
been the object of much more extensive and elaborate
jurisprudence around the world. The question quotes, and
observers have asked, is when is a restriction to
freedom of expression necessary? Necessary for what? And what do we mean by necessary? So in this segment, I will
try to answer these questions. And broadly speaking, the test of necessity involves considering
the following questions, and again, these are on
your screen as I speak. First question. Is the government acting in response to a pressing social need? That question is meant to ensure that the restriction on freedom
of expression has not been adopted merely out of convenience. It is a question that is quite central to the European Court, jurisprudence because
the provision itself, related to freedom of
expression article 10, does make reference to social need, and this is not a
reference that you find in, for instance, article 19 of the ICCPR. Nevertheless, even when evaluating
article 19 restrictions, the question must be whether or not the restrictions is indispensable, meaning really responding
to a pressing needs. In deciding that question,
the European Court has also considered the public interest in a case. If the information to be restricted relates to a matter of public concern, it would be necessary to demonstrate that it was certain that
dissemination would damage the legitimate purpose identified. The public interest
issues and concerns mean that the necessity test is particularly difficult to be matched. Second question, related
to the test of necessity: Is the limitation impairing the
right as little as possible, or does it restrict speech
in a broad or untargeted way? The nature of the restriction proposed is an important consideration. The Human Rights Committee
of the United Nation has stated that restriction
on freedom of expression may not put in jeopardy the right itself. Well, that’s an important issue. The one that goes to the heart of, the spirit of the right. The right cannot be restricted. The spirit of the right
cannot be so restricted as to delete the nature of the right. Thirdly, are there alternative
measures which would accomplish the same goal in ways less intrusive to freedom of expression? That’s an important question, and we will look at how
it’s being implemented in one specific case later on. And the 4th question
that court may ask is: Does the harm to freedom of expression caused by the restriction outweigh the benefits to the interest it is directed at protecting? So if a restrictions is
protecting the right of others, does the restriction to
freedom of expression outweight the benefit to the interest of the right of others? This is largely a question
or test of proportionality, meaning the restriction
must be proportionate to the interest it is seeking to protect. That particular question on the proportionality of the
restrictions, has been, again, the object of much
elaboration and discussion. The United Nations Human Rights Committee has stated, and I quote, “The principle of proportionality must 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 context of public
debate in a democratic society concerning figures in the
public and political domain.” The principle of proportionality
has to be respected. Not only in the law that
framed the restriction, but also by the administrative
and judicial authorities that are applying the law. In other words, the principal of proportionality
should be present at every step of the restrictions. From the moment the law is
being drafted and enacted, a law that embodies restrictions, to the moment it is gonna be implemented by any public actors. The European Court of Human
Rights has stated that, and I quote again, “Inherent in the whole of
the European Convention is a search for a fair balance between the demands of the
general interest of the community and the requirement of the protection of the individual’s fundamental rights.” And here the European Court is bringing a different light on the principle of proportionality, which is the balancing
between two interests. Two rights. Going back again to those four questions, the onus for all of them is on the state to demonstrate that the
restrictions taken was necessary. What it means is that in any given case, the state must demonstrate
in specific fashion, the precise nature of the threat to any of the grounds listed in paragraph three, that has caused it to restrict
freedom of expression, and the necessity and
proportionality of the restriction. In particular, by establishing a direct and immediate connection between the expression and the threat, between the expression and the right it is seeking to protect, between the expression and the interest it is seeking to protect. To illustrate the necessity test, we are gonna look at some cases from the international jurisprudence. We will begin by a case from
the Human Rights Committee, Bodrozić versus Serbia and Montenegro. Mr. Bodrozić is a well-known journalist and a magazine editor. And in a magazine article
published in 2002, the author politically criticized
a number of individual, including somebody called Mr. Segrt. At the time the article was published, Mr. Segrt was a manager of a factory, but previously he had
been a prominent member of the Socialist party of Serbia, including leader of the party group in the federal Yugoslav
parliament in 2001. In the article, the journalist Bodrozić, accused Segrt of slandering money, and he used fairly disparaging
terms to describe Mr. Segrt. That person, Mr. Segrt, filed
suit for uncertain libel. The first court dismissed the libel charge on the basis that the factual
aspect of the article, were in fact true and correct. But the court found the
journalist guilty of insult, on the basis that the
article was actually abusive and inflicted damage to the honor and reputation of the private plaintiff. He just got 10,000
Yugoslav dinars as a fine, and that conviction was up held on appeal. Eventually, the case reached
the UN Human Rights Committee. The journalist, Mr. Bodrozić, alleged that his criminal
conviction for the article, violate his right in article
19 to freedom of expression, and he seeks a declaration
of violation of article 19 and recommendations that
Serbia and Montenegro decriminalize libel and insult. So what does the committee does, the Human Rights Committee. It goes back to article
19 paragraph three, which permits restriction
on freedom of expression, if they are provided by law
for respect of the right or reputation of others and are necessary. So the Committee goes
through each one of the case. It observe that the state
party, Serbia and Montenegro, has evidenced no justification
for the prosecution and conviction of the author
on charges of criminal insult. Basically, the state
has not demonstrated why the prosecution was
necessary for the protection of the right and reputation of Mr. Segrt. The Committee found factual element, and the expression of opinion by the journalist in the article, and that article referring to a prominent public and political figure. Thus the Committee found
it difficult to discern how the reporting of
fact and of an opinion amounted to an unjustified infringement of Mr. Segrt’s right and reputation. Much less one calling for the application of criminal sanction. The Committee furthermore observes that in circumstances of public
debate in a democratic society, especially in the media, concerning figures in the public domain, the value placed by the
Covenant is particularly high. The value placed by the Covenant on expression is particularly high. It follows that the authors
conviction and sentence in the present case amounted
to a violation of article 19. So with this ruling, the Human Rights Committee
has questioned a pressing need that the restriction
was seeking to address, and it also determined that the government is under the onus to
demonstrate each of the step, and that the Serbian
government had not done. The Human Rights Committee
also highlighted, again the expression… That the expression of public debate in a democratic society
is particularly important, and must be as uninhibited as possible. Let’s consider another case, as Shin versus Republic of Korea. Mr. Shin is a professional artist. He painted a picture, which was subsequently seized by the South Korean authority, and under the term of article seven of the National Security law. On the ground that it benefited an enemy. It was alleged that the
image of the painting depicted a South Korean regime
as corrupt and militaristic and attempted to show the desirability of a structural change. Basically, it amounted
to an incitement to, and I cite, communization
of the Republic of Korea. The author, Mr. Shin, was convicted under the term of the
National Security law. His painting being deemed
a form of expression that was actively and aggressively threatening the security of the country, and the democratic order. So the Human Rights
Committee reviewed the case, and stated that the author’s painting clearly fell within the scope of the forms of expression
protected by article 19. The Committee noted that
the state party submission did not attempt to identify
which of the purpose, identified in article 19 three, were applicable to the
restriction they had imposed on the author the right to freedom of art. Much less, the necessity of
imposing the restrictions. The Committee accepted
that South Korea had identified a national security basis for the confiscation of the painting. However, South Korea was
also required to demonstrate the precise nature of the threats caused by the author’s painting to any of the purpose
listed in article three. Basically, how does the painting
threaten national security, was the question that the
Committee asked South Korea. And, of course, South Korea did not really have an answer to that question. And therefore, it was held unanimously that there had been
violation of article 19. With that particular case, Human Rights Committee
stated or reinstated that 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. That South Korea had not done. Let’s turn now to a recent,
and quite complex, case at the Inter-American Court. Omar Humberto Maldonado versus Chile. It deals with a scope of the
right of access to information collected during processes
of transitional justice. So the case is on the right
to access to information contained in truth commission archives on human rights violation. In the case in question, the court had to rule on whether one of the truths commission, created during Chile’s
transition to democracy, was required to turn over information from its archives to judges investigating the human rights violation committed during the dictatorship. The Chilean court had denied the request. Thus, imposing a restriction on freedom of expression and information. The Inter-American Court
applied the three part test, and it found: A, the restriction was authorized by law, and it sought two legitimate ends: The truth commission
ability to complete the task it had been charged with, and two, the protection
of the individual’s who gave testimony before the commission, for the Inter-American Court. As for the Chilean court, in this case, confidentiality was necessary to be able to reconstruct the historic narrative. So the court basically balance
the need of confidentiality in order to reconstruct
the historical narrative during the dictatorship with the freedom of expression and information for justice purposes. The Inter-American Court
ruled that the restrictions against freedom of
expression was proportionate because A it had a time limit, and two, the individuals who
testified before the commission could also give their testimony
to judges if they so choose. So what the Inter-American Court found is that yes the information provided to the truth commission was kept confidential. On the other hand, that does not stop people who
gave testimony to the archives from also going to the judge
and repeating their testiomny. Finally, the court noted
that the state itself was revising its access
to information procedures for all those cases related to that particular painful period. And so according to the judgement handed over by the Inter-American Court, it is legitimate in these
cases to withhold information, as long as doing so is
based on a legal provision, seek a legitimate end, and is necessary and
strictly proportionate for accomplishing that goal. So to sum up and in conclusion, international standard related
to freedom of expression, whether on the article 19 of the ICCPR or under the regional conventions, allow for limitation to the right of freedom of expression and information. This is not an absolute right. To be legitimiate, a restriction should
meet a three part test. One, the test of legality, meaning the restrictions
must be enshrined in law, which is itself respectful of international human rights standard. Two, valid grounds. The restrictions must
respond to legitimate grounds initiated in the international
or regional standard. And three, the restrictions
must be necessary. It must respond to a well
expressed and justified need, and it must be proportionate, meaning if there are alternative measures, which would accomplish the same goals in less intrusive measures
to freedom of expression, such measures should be adopted. Courts around the world rely on this test, or some version of this test, to assess restrictions
to freedom of expression. However, the test itself is
not implemented everywhere. In too many countries still, court provide little
elaboration on their reasoning, as to why they agree to a restrictions, or rely on legal reasoning
that are in fact politicized, and with little bearing
with international standard. That, of course, is detrimental to the rule of law in general, the protection of human rights, and freedom of expression in particular. The three part test is
not an easy test to meet, but it does require that
the authorities justify their restrictions to
freedom of expression, and do so by reference to established procedures and grounds. The discipline involved in this exercise benefit political governance, the legal profession and community, and, of course, society at
large and freedom of expression.

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