Holistic understanding of freedom of expression
Interpretations of both the harm and offense limitations to freedom of speech have gained relative dimensions based on the cultural and political contexts
Muhammad Zamir
It is generally understood that there is a close nexus between freedom of speech and the term freedom of expression. The former is generally refers to the right to communicate ones opinions and ideas without fear of government retaliation or censorship. It is similarly felt that the term freedom of expression connotes and includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.
In the same way, freedom of information is understood in terms of its denotation to be an extension of freedom of speech where the medium of expression is expanded and diversified through the use of the Internet. Freedom of information according to some analysts also refers to the right to privacy in the context of the Internet and information technology. This is included in the equation because consistent with the right to freedom of expression, the right to privacy and responsible use of the media is recognized as a human right. Freedom of information is consequently considered to be an extension of this right. Other analysts also agree that freedom of information may include within its paradigm the concept of exemptions or censorship in the providing of information. This is seen from an information technology context, i.e. the ability to access Web content within the matrix of censorship or restrictions.
Governments sometime restrict expression or the right to speech through different forms of limitations. This sometimes include the right to undertake action that may refer to libel, slander, obscenity, pornography, sedition, incitement, copyright violation, trade secrets, non-disclosure agreements, right to privacy, public security and public nuisance. However, whether these limitations can be justified under the harm limitation principle is determined on the basis as to whether influencing a third partys opinions or actions adversely to the second party constitutes such harm or not. It also needs to be noted here that governmental and other organizations could sometimes have policies restricting the freedom of speech for political reasons. This precept is used sometimes to expand the range of free speech limitations by prohibiting forms of expression that may be considered offensive to society, special interest groups or individuals. Such limitation is generally achieved through using differing degrees of religious legal systems that prohibits incitement of ethnic or racial hatred.
The right to freedom of expression is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and also considered as an international human rights law under the International Covenant on Civil and Political Rights (ICCPR), Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples Rights. These provisions hold that everyone shall have the right to hold opinions without interference and everyone shall have the right to freedom of expression and that 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 regardless of frontiers.
It would be worthwhile to refer here to the fact that activists believing in freedom of expression are sometimes encouraged in supporting their cause because of views expressed at different times by John Milton, (the noted English essayist) that underlined that freedom of speech should be understood as a multi-faceted right that includes not only the right to express, or disseminate information and ideas, but also three further distinct aspects-the right to seek information and ideas; the right to receive information and ideas and the right to impart information and ideas.
It may however be pointed out here that it is generally agreed that the exercise of these rights carries special duties and responsibilities and may therefore be subject to certain restrictions when necessary, particularly with regard to the respect of the rights or reputation of others or for the protection of national security or of public order or of public health or morals. With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest.
Nevertheless, it is clear that the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as may have been defined by law.
It would be useful at this point to also refer to the relationship of this right to other rights. The right to freedom of expression is also related to the right to a fair trial and court proceeding which is not prejudiced because of lack of equal opportunity. In the western world or in countries where democracy is practiced, as a general principle, freedom of expression cannot transgress the boundary of privacy (without specific prior agreement) but greater latitude is sometimes shown when it relates to criticism of public figures. Such criticism however has to be substantiated in clear terms. Otherwise, the person making such unproven allegations can be summoned to a judicial process that is consistent with civil law by the aggrieved party or institution.
Freedom of speech is understood to be fundamental in a democracy. This norm means that there can be no limiting of freedom of expression through public debate even in times of emergency. One of the most notable proponents of the link between freedom of speech and democracy has been Alexander Meiklejohn. He has argued that the concept of democracy is not only that of self-government by the people but also the creation of a system that creates an informed electorate. In this context he has pleaded for not having any constraints on the free flow of information and ideas.
One needs to note here that the current government in Bangladesh has been aware of this view since its political party came to power in 2009. It is this need that persuaded it to enact the Right to Information Act in its first session of the newly elected Parliament in 2009. It has also expanded the presence of media by permitting the growth of the electronic media (through nearly 30 Television channels in the private sector- so that faults in governance can be presented in real time), print media, the broadcast media (FM Stations) and On-line media. The last seven years has also seen phenomenal growth in digitalization, the use of the internet and mobile phones (most of them equipped with cameras). All these steps have ensured the growth of transparency and accountability in decision-making and also helped to partially stem the growing tide of corruption and the informal economy. There is also direct telecast of the Jatiyo Sangshad activities that enables viewers to know what is going on inside this Institution. This helps to reduce the possibility of manipulation of the electorate that might negate the democratic ideal.
One is tempted here to agree with the views expressed by Thomas I. Emerson that freedom of speech helps to provide a balance between stability and change. He correctly observed that freedom of speech acts as a safety valve to let off steam when people might otherwise be bent on revolution. He also appropriately argued that the principle of open discussion is a method of achieving a more adaptable and at the same time more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus. One needs to observe at this point that this also helps to ameliorate the normal process of bureaucratic decay and mindset.
It would be appropriate to similarly refer also to Joel Feinberg and his comment about Mills harm principle as opposed to the offense principle. He pointed out in 1985 that the harm principle does not provide sufficient protection against the wrongful behaviors of others. He has observed that offending someone is less serious than harming someone. There is a subtle difference that needs to be taken note of and the penalties imposed should be higher for causing harm. Bernard Harcourt added another dimension to this in 1999 when he mentioned that the original harm principle was never equipped to determine the relative importance of harms.
Interpretations of both the harm and offense limitations to freedom of speech have gained relative dimensions based on the cultural and political contexts. This process has gained particular attention in the recent past in Europe. It would be worthwhile to note here that a subtle note has however been introduced whereby though European countries take pride in freedom of speech, nevertheless, they outlaw speech that might be interpreted as Holocaust denial. These include Austria, Belgium, Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Slovakia, and Switzerland. At the same time we have seen how Charlie Hebdos abrasive and offensive cartoons exceeded the boundaries of free speech but were not condemned by some on the pretext of freedom of expression.
There has been another evolution in the arena of gathering and disseminating information. Bernt Hugenholtz and Lucie Guibault, in this regard has pointed out that the public domain is under pressure today from the commodification of information as information with previously little or no economic value has acquired independent economic value in the information age. This includes factual data, personal data, genetic information and pure ideas. The commodification of information is taking place through intellectual property law, contract law, as well as broadcasting and telecommunications law. This in turn is generating its own complexity within the information domain.
There is also currently an anxiety about the need to create responsibility in the manner in which internet is functioning as a medium. It has been noted that observations on the Internet can sometimes be unpolished, emotionally charged, sexually explicit, and vulgar in a word, indecent for many communities. Governments in many countries have already taken the pro-active and pre-emptive effort to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography. This is working only up to a point. More individual and collective responsibility is required.
I am not suggesting that we need to be a closed society as is the case in some countries that are in the list created for this purpose by Reporters without Borders. However, it is time; we practice our rights with caution and not publish, broadcast or disseminate information without first checking whether it is true. Just saying sorry might not be considered as enough by those who have high expectations from the person or his Institution and have suffered unnecessarily because of his lapses.
Muhammad Zamir, a former ambassador, is an analyst specialised in foreign affairs, right to information and good governance. He can be reached at [email protected]
