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The UN General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR) on 16 December 1966. ICCPR Article 19 states:
General comment 34 (open shut box)General Comment 34 emphasises that freedom of expression and opinion are the foundation stone for a free and democratic society and a necessary condition for the promotion and protection of human rights. This General Comment addresses in detail:
Freedom of information, expression & democracyGeneral Comment No. 25 deals with freedom of expression in the context of participation in public affairs and the right to vote. The Human Rights Committee has stated that: Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association. … It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election and to advertise political ideas. Common law protectionA well-established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms. This includes freedom of expression. See our page on common law rights and parliamentary scrutiny . Constitutional law protectionThe Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals. In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106, the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in Unions NSW v New South Wales [2013] HCA 58. Protection in State and Territory human rights lawsSection 16 of the Human Rights Act 2004 (ACT) states that:
The rights in this act are subject to section 28:
Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides:
(a) orally; or (b) in writing; or (c) in print; or (d) by way of art; or (e) in another medium chosen by him or her.
(a) to respect the rights and reputation of other persons; or Freedom of expression in other instrumentsConvention on the Rights of the ChildThe Convention on the Rights of the Child recognises the right to freedom of expression and information in the same terms as ICCPR Article 19. As with other rights recognised in the CRC this provision should be read with Article 5, which states: States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention. Article 17 goes on to state: States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall: (a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29; (b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources; (c) Encourage the production and dissemination of children's books; (d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous; (e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18. Convention on the Rights of Persons with DisabilitiesThe Convention on the Rights of Persons with Disabilities recognises that people with disability have the rights to freedom of expression and information which are recognised for all people in ICCPR Article 19. The CRPD also goes on to
Article 21 states that: States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:
European ConventionArticle 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that:
United States ConstitutionThe First Amendment to the Constitution of the United States states a right to freedom of speech and press freedom in more absolute terms than Article 19 of the ICCPR or the equivalent provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Congress shall make no law … abridging the freedom of speech or of the press … The text is unqualified. However, the United States Supreme Court has interpreted the right as subject to some restrictions: ‘the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent’: Schenck v United States 249 US 47 at 52 (1919). This was later refined to the extent that free speech could be restricted without contravening the First Amendment where it is likely to incite or produce imminent lawless action: Brandenburg v Ohio 395 S 444 at 447 (1969). The Supreme Court has held that defamation law is subject to the principles of the First Amendment. Criticism of public officials and public figures will not give rise to liability in an action for defamation in the US, unless ‘actual malice’ can be proved against the defendant: New York Times Co v Sullivan 376 US 254 (1964). However, the First Amendment protection afforded to criticism of public officials and public figures does not extend to defamatory statements made in relation to private individuals. Public figures ‘invite attention and comment’, whereas private individuals ‘have not accepted public office or assumed an influential role in ordering society’. See Gertz v Robert Welch, Inc 418 US 323 at 341–46 (1974). More information: UNESCO program on freedom of expression |