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Access to information in international organizations 2017, para. 3
- Paragraph text
- There have been similar information-poor situations involving peacekeeping, whistle-blowing, allegations of fraud, personnel decisions and conflicts of interest for which a comprehensive freedom of information policy for the United Nations would have advanced public understanding of and engagement with global issues and reinforced mechanisms for accountability. A lack of transparency and proper access to information, for instance, has arguably played a role in the lack of accountability on the part of peacekeepers accused of sexual abuse.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Humanitarian
- Violence
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 6
- Paragraph text
- Where rule of law prevails, Governments and Government officials stay accountable to their citizens through a variety of mechanisms. Too often, however, accountability is a chimera, and nowhere is this more evident than in situations where authorities withhold information from the public. Without freedom to access information of all kinds — in particular when Governments withhold information from the public and its judicial, legislative and media mechanisms — abuses may take place, policies affecting the general welfare may not be tested and improved and overall public engagement and participation diminishes, often by design. By contrast, information-rich environments help promote good decision-making and meaningful public debate, building credibility for public institutions. Even if implementation may not always meet the highest standards, Governments have recognized this fundamental point, at the intersection of good, open government and the human right of access to information, recognizing that the credibility of public authorities depends on their willingness to engage with those who fund their work and elect their key officials — the members of the public.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 7
- Paragraph text
- These general points about access to information are hardly controversial today in discussions of governmental power and policy. A majority of Governments around the world have adopted freedom of information laws, with varying degrees of robustness and levels of implementation. But the movement for open government has largely bypassed global institutions — not totally, but so significantly that “access to information” carries very little currency within the centres of international governance. Ask an international official about access to information and one is more likely to hear about websites and archive policy (extremely important information, but not exactly to the point) than the public’s ability to gain access to the contemporary workings or failings of or debates within intergovernmental organizations or institutions. This is not to begrudge the work done by intergovernmental organizations during the decades of the digital revolution to open up their workings to the public. Whereas researchers and journalists once had to carry out their work at physical libraries serving as repositories for the documentation of the United Nations and other intergovernmental organizations, vast amounts of material may now be found on websites, including recently adopted material, which can sometimes be traced within days (and sometimes hours) of adoption. Public information officers should be congratulated for their willingness to ensure the widespread accessibility of official documents. Similarly, there are examples of organizations and agencies opening up files on their spending and contracting to public scrutiny, although with varying degrees of success.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 10
- Paragraph text
- The right to information under international law has its roots in article 19 of the Universal Declaration of Human Rights and in article 19 of the International Covenant on Civil and Political Rights. As formulated in the International Covenant, everyone enjoys the “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”. The Human Rights Committee has provided a clear enunciation of what the right involves, emphasizing that article 19 “embraces a right of access to information held by public bodies”. “Such information”, the Committee noted, “includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production” (CCPR/C/GC/34, para. 18). Moreover, the Committee emphasized that the right does not merely depend on public authorities’ reaction to requests for information: “To give effect to the right of access to information, States parties should proactively put in the public domain Government information of public interest. States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation. The procedures should provide for the timely processing of requests for information according to clear rules that are compatible with the Covenant. Fees for requests for information should not be such as to constitute an unreasonable impediment to access to information. Authorities should provide reasons for any refusal to provide access to information. Arrangements should be put in place for appeals from refusals to provide access to information as well as in cases of failure to respond to requests (CCPR/C/GC/34, para. 19).”
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 12
- Paragraph text
- In the years since, elaboration of the right to information has been a common thread in reporting under the mandate. In 2013, the Special Rapporteur gave a full rationale for a robust right to information: “… public authorities act as representatives of the public, fulfilling a public good; therefore, in principle, their decisions and actions should be transparent. A culture of secrecy is acceptable only in very exceptional cases, when confidentiality may be essential for the effectiveness of their work. There is consequently a strong public interest in the disclosure of some types of information. Moreover, access to certain types of information can affect the enjoyment by individuals of other rights. In such cases, information can be withheld only in very exceptional circumstances, if at all (A/68/362, para. 20).”
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 13
- Paragraph text
- In 2004, the Special Rapporteur joined with representatives of regional mechanisms for freedom of expression to emphasize the importance of freedom of information as a fundamental right. Together they emphasized that addressing the widespread “culture of secrecy” in public institutions required not only legislation and implementation but also “sanctions for those who wilfully obstruct access to information”.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 14
- Paragraph text
- In parallel with the work of the Human Rights Committee and its special procedures mechanisms, the Human Rights Council and the General Assembly also articulated the importance of freedom of information. As recently as 2016, the Council called upon all States to ensure disclosure of information held by public authorities and “to adopt transparent, clear and expedient laws and policies that provide for the effective disclosure of information held by public authorities and a general right to request and receive information, for which public access should be granted, except within narrow, proportionate, necessary and clearly defined limitations”. Access to information has become a standard element of other human rights treaties (A/70/361, para. 6), and has been widely adopted in international agreements pertaining to development, the environment, food and agriculture and corruption, among other substantive areas. The Aarhus Convention provides an example of international agreement that access to information, public participation in decision-making and access to justice in environmental matters, an area of major public interest, “contribute[s] to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being”. Similarly, in recognition of the essential role played by the right to freedom of information, Sustainable Development Goal 16 links access to information to good governance, human rights and accountability and calls on all Member States to adopt and implement public access to information laws and policies (resolution 70/1, paras. 16.6-16.10).
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 15
- Paragraph text
- During the period of normative expansion in the establishment and work of human rights bodies, States were also adopting legislation to implement the right to information, while many incorporated a right to information as a matter of constitutional law. At the domestic level, States have increasingly opened up the workings of government as a matter of law, if not always achieving the best implementation practices. Nevertheless, the environment of confidentiality and withholding that tends to prevail within bureaucracies and in political leadership around the world remains difficult to eliminate. A prevailing exclusion of national security information from right-to-information legal frameworks encourages a tendency to look at disclosures, even those of the highest public interest without meaningful harm to governmental interests, as contrary to “the national interest”. Such attitudes put significant negative pressure on access-to-information laws, and they may have a spill-over effect beyond traditional national security environments. In short, while the legal framework for access to information has improved globally, open government still faces significant barriers in terms of overcoming attitudes and instilling implementation practices.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 16
- Paragraph text
- Human rights law also recognizes connections between the right to freedom of expression as contained in article 19 of the International Covenant on Civil and Political Rights and other rights. The right to information is also closely connected to article 25 (1) of the International Covenant, which protects every citizen’s right and opportunity to “take part in the conduct of public affairs”. The Human Rights Committee has emphasized the importance of freedom of information to public participation “without censorship” (CCPR/C/21/Rev.1/Add.7, para. 25). The Office of the United Nations High Commissioner for Human Rights (OHCHR) reiterated and expanded on this point (and others) in its 2015 report on the promotion, protection and implementation of the right to participate in public affairs in the context of the existing human rights law (A/HRC/30/26).
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 17
- Paragraph text
- Recognition of the right to information, consistent with article 19 of the International Covenant, has come with the acknowledgment that access to information may be subject to limitations. Those limitations, originating in article 19 (3), must be provided by law and be necessary and proportionate in order to protect the rights or reputations of others, national security or public order or public health or morals. I have previously reviewed how the restrictions permissible under article 19 (3) apply in the context of freedom of information (A/70/361, paras. 8-13). How international organizations might translate the norms of the International Covenant for the purposes of their own access-to-information initiatives is discussed below.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 19
- Paragraph text
- Transparency within intergovernmental organizations advances the same objectives that underlie the expansion of freedom of information and open government initiatives. As noted in the submission of the Centre for Law and Democracy, such organizations are public institutions, performing governmental functions, much as States do. Members of the public can only seriously engage with the critical issues pursued by intergovernmental organizations when they have access to information about them. In the context of multilateral institutions, the Special Rapporteur on the rights to freedom of association and peaceful assembly noted that for “civil society to engage effectively in global decision-making, the right to access information is indispensable” (A/69/365, para. 15). In countries where intergovernmental organizations do extensive work, whether it involves peacekeeping or development assistance or human rights, to name a few areas, genuine engagement and participation means the ability to gain current information about the work of such missions. It means having mechanisms of public accountability so that individuals can determine whether the organizations are serving their interests or those of the organization itself, including, possibly, corporations, local leaders or corrupt participants in public life.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 22
- Paragraph text
- It bears re-emphasizing that article 19 of the International Covenant guarantees everyone the right to seek and receive information of all kinds, regardless of frontiers. At a minimum, States are obligated not to stand in the way of members of the public receiving information from organizations like the United Nations and its departments and agencies, absent a demonstration of the legitimate application of the limitations found in article 19 (3) of the Covenant. One can go a step further and highlight the broad consensus that States are obligated not only to avoid illegitimate restrictions on access to information but that they should create enabling environments for all rights under article 19 of the Covenant. While intergovernmental organizations clearly enjoy an independent personality under international law, their main policies and legal norms are often the result of the decisions of their Member States. As such, States should encourage the creation of environments that include access to information not merely because of some legalistic approach to intergovernmental organizations and the responsibility of the United Nations but because their citizens — all citizens, everywhere — should enjoy the right to information of all kinds regardless of frontiers, including information about intergovernmental organizations and the United Nations.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 23
- Paragraph text
- Sixteen institutions made submissions for the compilation of the present report, which I supplemented with interviews and consultations. Despite extensive outreach, dozens of intergovernmental organizations and agencies within the United Nations system did not respond to the mandate’s call for submission. I was particularly disappointed not to receive a submission from the Secretariat of the United Nations Headquarters in New York. While organizations that did not make any submission may have some kind of access-to-information policy in place, 10 organizations that made submissions have formal access-to-information, disclosure or transparency policies; two are currently drafting policies; one does not have a formal access-to-information policy but provides access through an array of its policies; and three do not have any information access policies. Based on research, it appears that most international organizations lack binding policies to protect and promote the right of access to information. Put another way, based on my research, with a few notable exceptions, intergovernmental organizations have failed to create mechanisms that can penetrate their opacity and enable easy access to their operations. Most egregiously, the United Nations does not have an access-to-information policy that applies to every department and specialized agency; it does not even have ad hoc standards for response to access-to-information requests.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 32
- Paragraph text
- Public disclosure should also involve the following points: first, the institutions themselves should engage on a regular basis with members of the public, typically through civil society organizations, to ensure that they are making public all relevant and valuable information. For instance, in its submission for the present report, the International Service for Human Rights highlighted the kinds of information that it believes to be in the public interest and how OHCHR could improve its proactive disclosures. Regular dialogue with civil society organizations would enable all intergovernmental organizations to be efficient in the disclosure of information, and would likely reduce the resources devoted to such requests. Second, disclosed information must be shared in a way that is easily searched and analysed. Third, in an age of surveillance and information insecurity, all organizations must take steps to ensure both the security of their information systems and of the individuals who may be seeking access to them. I have already raised the issue of digital insecurity at OHCHR, including in my 2015 report to the Human Rights Council (A/HRC/29/32, para. 37). The OHCHR website, and the website of the United Nations itself, remain unencrypted (as do many other institutions), potentially deterring those concerned about the privacy of their online searches from seeking information.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 33
- Paragraph text
- Like Governments, intergovernmental organizations should establish an explicit and comprehensive legal framework that recognizes a right to information applicable throughout the entire organization and its subsidiary organs. Any access policy should, explicitly or implicitly, promote disclosure of information in the public interest — that is, information to which the public has a right of access because of the benefit it would provide to understanding of the work of the organization. Information should be defined broadly to include all records, documents, data, analyses, opinions and processes, regardless of the media in which it is held, in keeping with the principle that individuals have a right to information and ideas of all kinds, subject only to narrow non-disclosure rules. The policy should be uniform across the organization, and should be written in plain language. It should also be binding, precluding the organization from withholding information on any basis found outside the policy itself. For instance, WFP generally recognizes a wide range of categories of information, capturing all sorts of media, and emphasizes the policy as a “directive” to be carried out by senior management.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 36
- Paragraph text
- Organizations should also avoid limiting who may make requests for information. Just as article 19 of the International Covenant guarantees everyone’s access to information, without limiting or defining “everyone”, intergovernmental organizations should be open to requests regardless of the requester, without regard to concepts such as “standing” or “harm” to demonstrate a reason for the request. A person or entity making a request should not be required to provide a justification for it. In order to demonstrate that everyone should enjoy such access, policies should keep costs to the absolute minimum, eliminating fees to the greatest extent possible.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 38
- Paragraph text
- The legitimate subjects of restriction for States, to protect the rights or the reputation of others, national security or public order or public health or morals, may also serve as a basis for restrictions on the part of intergovernmental organizations. The rights of others, for instance, would counsel for the creation of protections to ensure that disclosures do not interfere with the privacy rights of individuals employed by or in some way connected to the intergovernmental organization. Public order may be an especially salient basis for sensitivity with regard to disclosure in the context of peacekeeping, while national security could be a basis, for example: the International Atomic Energy Agency (IAEA) might choose not to disclose certain information about nuclear inspections; or the World Health Organization (WHO) could cite public health concerns as a basis for withholding sensitive information. Even for these generic bases for non-disclosure, the organization would still need to demonstrate necessity and proportionality in a given case.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 45
- Paragraph text
- Intergovernmental organizations, like many (if not all) bureaucratic institutions, prize some measure of secrecy and the ability to work outside the public eye. In order to chip away at the secrecy embedded in large institutions, implementation must continue throughout the life of an access policy, including through education of the staff and leadership. The World Bank has developed a staff handbook, a mandatory training programme, workflow automation and records management systems, including dedicated websites, to provide easy access to documents (including an online portal for users to submit requests for information). Such internal programming is necessary to ensure that access to information becomes a part of organizational culture, understood as the responsibility of a public institution rather than an interference with its work.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2017
Paragraph
Access to information in international organizations 2017, para. 53
- Paragraph text
- Third, the United Nations whistle-blower policy provides that: “The individual must make the report in good faith and must submit information or evidence to support a reasonable belief that misconduct has occurred” (ST/SGB/2017/2, para. 2.1 (a)). In the context of whistle-blowing, a “good faith” requirement should not require justification other than the fact that the whistle-blower aims to disclose waste, fraud, abuse or some other illegal conduct. It should not be understood to require or permit any kind of inquiry into other motives that the whistle-blower may have.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2017
Paragraph
Contemporary challenges to freedom of expression 2016, para. 5
- Paragraph text
- Article 19 of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights guarantee everyone's right to hold opinions without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any media, including in the form of art. The Human Rights Council and the General Assembly have referred to freedom of expression as one of the essential foundations of a democratic society and one of the basic conditions for its progress and development (see Council resolution 21/12) and emphasized that a free media helps to build inclusive knowledge societies and democracies and foster intercultural dialogue, peace and good governance (see Assembly resolution 68/163). Both bodies have highlighted the critical importance of journalism in the above-mentioned resolutions and have affirmed that the same rights that people have offline must also be protected online, in particular freedom of expression (see Council resolutions 20/8, 26/13 and 32/13). Attacks on freedom of expression are nothing new, nor is the deep concern expressed about them by the United Nations (see Commission on Human Rights resolution 1993/45 and Council resolution 12/16). With 168 States parties and wide acknowledgement of its centrality in human rights law, the International Covenant on Civil and Political Rights provides the principal legal standard for the vast majority of communications relating to freedom of expression.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 6
- Paragraph text
- In paragraph 10 of its general comment No. 34 (2011) on article 19: Freedoms of opinion and expression, the Human Rights Committee explained that any form of effort to coerce the holding or not holding of any opinion is prohibited. No one may be penalized, harassed, intimidated or stigmatized for holding an opinion. The right to hold opinions in a digital age is often subject to interference. For example, work product, journals and diaries stored on laptops and in the cloud are increasingly subject to attack (see A/HRC/29/32, paras. 19-21). Communications include allegations that individuals may be harassed at least in part because of their membership in an organization. Such harassment may amount to impermissible interference with opinion under article 19 (1), in addition to interference with the right to freedom of association under article 22 of the Covenant.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 7
- Paragraph text
- In contrast to the unconditional prohibition of interference with opinion, article 19 (3) of the Covenant imposes three requirements according to which States may restrict the exercise of freedom of expression. Those conditions are to be implemented narrowly (see Human Rights Committee, general comment No. 34, paras. 21-36). Article 19 (3) provides that the exercise of the right to freedom of expression involves special duties and responsibilities and may 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; and (b) for the protection of national security or of public order (ordre public), or of public health or morals. Article 20 of the Covenant also provides for the prohibition of propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 8
- Paragraph text
- The "duties and responsibilities" under article 19 (3) appear nowhere else in the Covenant. Only in the preamble is it emphasized that the individual, having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the Covenant. The language in the Covenant and in article 29 of the Universal Declaration of Human Rights does not identify duties or responsibilities of individuals to the State, but to other individuals and the communities in which they live, an acknowledgement that the only legitimate restrictions are those demonstrably grounded in and necessary for the protection of the rights of other individuals or a specific public interest. It is not unusual for States to highlight an individual's duty in order to bolster expansive limitations on the right to freedom of expression. However, the phrase "duties and responsibilities" adds nothing to claims for support of a State's powers of restriction. By no measure does the language prioritize the State over the rights enjoyed by individuals under the Covenant and the Declaration.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 11
- Paragraph text
- While a communication alone does not seek to prove a violation of article 19 of the Covenant, States nonetheless should demonstrate that the restriction meets each of the three conditions found in article 19 (3) thereof: legality, legitimate objective, and necessity and proportionality.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 12
- Paragraph text
- Article 19 (3) requires that any restriction be provided by law. A restriction does not meet this requirement simply because it is formally enacted as a national law or regulation. It must also be formulated with sufficient precision to enable both the individual and those charged with its execution to regulate conduct accordingly and be made accessible to the public. It cannot confer discretion for the restriction of freedom of expression on those charged with its execution (see Human Rights Committee, general comment No. 34, paras. 24-26). Communications from the mandate holder have identified at least three problems that may be framed as concerns about the legality condition.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 13
- Paragraph text
- First, legislation often employs broad terms that grant authorities significant discretion to restrict expression and provide individuals with limited guidance about the lines dividing lawful from unlawful behaviour. For instance, I raised concerns with China about its draft cybersecurity legislation in 2015, noting that the law's proscriptions - for instance, that individuals "observe public order and respect social morality" and not use the Internet to "engage in activities harming national security" or "upset social order" - are so general as to permit officials excessive discretion to determine their meaning.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 17
- Paragraph text
- Article 19 (3) requires the State to demonstrate that the tools chosen to achieve a legitimate objective are necessary and proportionate to protect the rights or reputations of others or national security, public order, or public health or morals. Necessity and proportionality also apply to prohibitions under article 20 of the Covenant (see Human Rights Committee, general comment No. 34, paras. 50-52). The State must establish a direct and immediate connection between the expression and the threat said to exist (ibid., para. 35). Restrictions must target a specific objective and not unduly intrude upon other rights of targeted persons, and the ensuing interference with third parties' rights must be limited and justified in the light of the interest supported by the intrusion (see A/HRC/29/32, para. 35). The restriction must be the least intrusive instrument among those which might achieve the desired result (see Human Rights Committee, general comment No. 34, para. 34).
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2016
Paragraph
Contemporary challenges to freedom of expression 2016, para. 18
- Paragraph text
- Among the permissible grounds for restrictions, States often rely on national security and public order. "National security", undefined in the Covenant, should be limited in application to situations in which the interest of the whole nation is at stake, which would thereby exclude restrictions in the sole interest of a Government, regime or power group, a point emphasized in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, adopted in 1985 (E/CN.4/1985/4, annex). It also may include protection of a State's political independence and territorial integrity. Similarly, "public order" (ordre public) must be limited to specific situations in which a limitation would be demonstrably warranted.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2016
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Contemporary challenges to freedom of expression 2016, para. 19
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- Yet States often treat national security or public order as a label to legitimate any restriction. The Human Rights Council recognized this problem in 2008 in its resolution 7/36, stressing the need to ensure that invocation of national security, including counter-terrorism, is not used unjustifiably or arbitrarily to restrict the right to freedom of opinion and expression. One way to resist unjustifiable or arbitrary invocation of either justification is to insist that Governments demonstrate the risk that specific expression poses to a definite interest in national security or public order, that the measure chosen complies with necessity and proportionality and is the least restrictive means to protect the interest, and that any restriction is subject to independent oversight. In 2016, I shared with a federal judge in the United States of America how article 19 may be used to assess proposals to gain access to the content of encrypted personal digital devices. In my letter to the Court, I noted that alternative measures were available to the Government to conduct its investigation into the 2015 massacre in San Bernardino, California, and that the proposed order would implicate the security and freedom of expression of what would likely be a vast number of people (and would thus be disproportionate).
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2016
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Contemporary challenges to freedom of expression 2016, para. 20
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- State assertions that national security or public order justifies interference with personal security and privacy are common in cases of surveillance of personal communications, encryption and anonymity, subjects addressed in my report to the Human Rights Council in 2015 (A/HRC/29/32), in my predecessor's report in 2013 (see A/HRC/23/40) and in the report of the Office of the United Nations High Commissioner for Human Rights on the right to privacy in the digital age (A/HRC/27/37). Surveillance, including both bulk collection of data and targeted attacks on specific individuals or communities, interferes directly with the privacy and security necessary for freedom of opinion and expression, and always requires evaluation under article 19. I am concerned that practice often fails to meet such standards. A law recently adopted in the Russian Federation imposes a duty on Internet providers to decrypt communications, apparently requiring the establishment of encryption back doors that will likely disproportionately undermine all users' security. Both the United Kingdom and France have proposed to provide their law enforcement and intelligence officials with the authority to require companies to grant them access to encrypted communications of their users (see A/HRC/29/32, para. 45). Brazil prohibits anonymity entirely as a matter of constitutional law online and offline (ibid., para. 49). I understand that some of these efforts involve genuine commitments to preventing terrorism or guaranteeing public order, but the Governments have not demonstrated that interference with Internet security is a necessary or proportionate measure in the light of the specific threats caused to privacy and freedom of expression.
- Body
- Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2016
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