Foundational International Law: The ICCPR and the UN Declaration on Human Rights

Freedom of speech and expression is internationally protected as fundamental human rights by Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). UDHR and ICCPR are ambiguous and subject to judicial interpretation. That being said, under human rights law, necessary and proportional limitations can be set when it comes to freedom of expression. [i]

In 1948, the General Assembly of the United Nations announced the Universal Declaration of Human Rights (UDHR). The UDHR outlines rights that member States must respect for people throughout the world. The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations General Assembly in 1966 and is regarded as a key international human rights treaty. The ICCPR provides a range of protections for civil and political rights. This treaty guides countries on their obligations regarding human rights. Businesses typically instead follow the United Nations Guiding Principles on Business and Human Rights (UNGP). The UNGP illustrates key elements of a proactive and credible human rights risk management process for asset owners and manager’s operations and business relationships. The principles promote human and labor rights, the environment, and anti-corruption. [ii] Because the UNGP is generally concerned with protecting the workers, Facebook should look to the ICCPR and the UN Declaration on Human Rights for guidance in protecting its users.

Article 19 of The International Covenant on Civil and Political Rights (ICCPR)

  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.

This provision, however, is inherently ambiguous. For example, the “special duties and responsibilities” required to exercise freedom of expression are not defined. Further, the ICCPR allows States to impose regulations on speech “for respect of the rights or reputations of others” but these rights and what kind of reputational harm is enough to allow for a speech restriction are also not defined. Any speech hat a State would seek to regulate would presumably degrade the reputation of something but it is not clear how much reputational harm is necessary before a regulation can be imposed.

Article 19 of the Universal Declaration of Human Rights (UDHR)

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19 of the Universal Declaration of Human Rights (UDHR) is more of the same basic concept as Article 19 of The International Covenant on Civil and Political Rights (ICCPR) but even more ambiguous as there is no test as to what kind of restrictions are permissible. Presumably some restrictions are permissible, because the Article read literally, with no permissible restrictions, would lead to absurd results. People would have the right to publish their expressions “through any media.” This would allow individuals to require major news companies to publish any of their thoughts. Clearly, this is not the case in any country that is a member of the United Nations so the Article has unspecified limits.

Case law can help to illustrate what these provisions mean, but is also not definitive. For example, European law is more inclined in banning certain types of speech than US law, especially when it comes to hate speech. The US approach is much more reserved when it comes to imposing restrictions on free speech. Two important cases from the European Court of Human Rights are: Jersild v. Denmark; and Vejelans and others v. Sweden.

Decided by the European Court of Human Rights in 1994, Jersild v. Denmark [iii] was a case where a journalist, plaintiff, broadcast an interview where he questioned three guests who made racist remarks on the air. The three guests were convicted of breaking race laws, and the journalist was convicted of aiding and abetting. The European Court of Human Rights found that the journalist’s conviction was a violation of his freedom of expression under article 10. The Court reasoned that the interview was not conducted for a racist purpose. The court further reasoned that it was significant to publicly discuss topics like racism because without the ability to air such discussions, such views can never be made public and rebutted by the press. This case was decided much like it would be in the U.S., where the right to free speech is heavily focused on the policy of having an open marketplace of ideas where truth can defeat misinformation. [iv]

In Vejelans and others v. Sweden, the European Court of Human Rights unanimously upheld the conviction of four people who had distributed leaflets at a school chastising homosexuality. The leaflets stated that the effect on society by homosexuals was morally destructive. The court found the actions to be “agitation against a national or ethnic group” under Article 10 of the European Convention. The Court reasoned that sexual orientation discrimination is as problematic as discrimination based on race, ethnicity, religion, or national origin.  The Court deemed that any intrusion on the right to freedom of expression was necessary in a democratic society to protect those groups from discrimination. This case demonstrates a stark contrast to the United States’ approach to the freedom of speech where such a viewpoint-based law would almost certainly be struck down.

Bottom line is that Free speech has the highest protections in the US. In Europe, the government has more leeway to restrict speech, particularly discriminatory speech. For example, in Germany citizens are not legally allowed to deny the Holocaust. Europe cracks down harder on hate speech, anti-LGBT speech, radically offensive speech, and similar, while in the US, fewer speech restrictions are permitted. In very few, narrowly tailored, fact-sensitive cases will US courts uphold a speech ban.

References:

[i] https://www.newamerica.org/oti/reports/everything-moderation-analysis-how-internet-platforms-are-using-artificial-intelligence-moderate-user-generated-content/legal-frameworks-that-govern-online-expression/  (citing Filippo A. Raso et al., Artificial Intelligence & Human Rights: Opportunities & Risks, September 25, 2018).
[ii] Baughen, supra note 13, at 213; see also OHCHR, Guiding Principles on Business and Human Rights, p. 17 United Nations Human Rights (2011), https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.
[iii] Jersild v Denmark (App no 15890/89) ECHR 23 September 1994.
[iv] Abrams v. United States (1919).
Roya Butler Written by:

Ms. Butler is a data/technologist, curator/artist utilizing diverse yet integrated skill sets to fully unlock enterprise data warehouse potential.

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