Freedom of the Press/Derogations
Under international human rights laws, what permissible exceptions (often called derogations) exist?
In international human rights law, freedom of the press is outlined in the International Bill of Human Rights, which encompasses the Universal Declaration of Human Rights (UDHR), the International Covenant for Civil and Political Rights (ICCPR), and the International Covenant for Economic, Social and Cultural Rights (ICESCR). These documents include the rights protected as well as exceptions, or derogations, if they are applicable. The UDHR is not a treaty, so states are not legally bound to it (Australian Human Rights Commission). Still, the document serves as a foundation for international human rights legislation. Article 19 of the UDHR protects the right to “receive and impart information and ideas through any media and regardless of frontiers.” Article 29(2) briefly states general derogations for the rights laid out in other articles:
“In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (United Nations General Assembly, 1948).
Unlike the UDHR, the ICCPR is legally binding to the states that ratify it. The ICCPR contains similar language in paragraph 2 of Article 19 relating to freedom of the press, but goes farther in the following paragraphs to mention restrictions. These acceptable restrictions “shall only be such as are provided by law and are necessary: For respect of the rights or reputations of others; For the protection of national security or of public order (ordre public), or of public health or morals” (United Nations General Assembly, 1966). Additionally, Article 20(1) prohibits war propaganda, which is often distributed by means of government and independent news media and involves the strategically crafted systems of gathering and distributing information as to incite war support (Miller, 2004, 8). Freedom of the press includes the media’s right to freely publish information, but also includes the people’s right to receive accurate information, especially during times of political tension, such as war or elections when this right may be jeopardized. The 2009 Joint Declaration of the United Nations, Organization of American States, Organization for Security and Cooperation in Europe, and African Commission on Human and People’s Rights emphasized the importance of people’s access to accurate, impartial information (UN Special Rapporteur on Freedom of Opinion and Expression et al., 2009). Because freedom of the press includes the ability to both receive and impart information, prohibiting war propaganda can be seen both as the protection of people’s right to receive impartial news and the limitation of the press from spreading inaccurate or violence-inciting media. Miller argues that war propaganda includes not only outward attempts to garner war support through the media, but also subtle manipulation of the media by the state to prevent effective dissent, resulting in “information dominance” by the state so they may further their military agendas (Miller, 2004, 14). Article 20(2) of the ICCPR prohibits advocacy of national, racial, or religious hatred that incites discrimination or violence, which applies but is not limited to freedom of the press.
The Article 4 of the ICCPR also includes measures for states of emergency and highlights the rights and articles from which states cannot derogate, including the right to life (Article 6), protection against torture (Article 7), protection against slavery (Article 8), protection against debt imprisonment (Article 11), protection against punishment for a crime that was not illegal at the time it was committed (Article 15), the right to recognition before the law (Article 16), and the right to religion and freedom of conscience (Article 18). The specified list of rights to be protected during emergencies does not include freedom of the press, meaning states are permitted to restrict the press under the conditions “that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion, or social origin” and that states inform the United Nations of the right from which they derogated, the reasons they derogated, and the date on which the derogation will end (United Nations General Assembly, 1966, Article 4(1), Article 4(3)). Hafner-Burton, Helfer, and Fariss argue that the processes outlined in derogation clauses of human rights law allow derogators to take the necessary actions during an emergency situation and signal to the international community that those actions will be temporary and carried out in a lawful manner (2011, 673-674). The United Nations includes the descriptive conditions and processes by which states can derogate from rights such as freedom of the press because otherwise states may be hesitant to ratify human rights treaties in the first place, and therefore not protect those rights at all. According to Siehr, “The common task of emergency clauses in human rights instruments is to cope with the challenge of finding a middle course between the recognition of the legitimate right of sovereign States to defend their constitutional, democratic order and the prevention of misuse of the tool of emergency rights” (Siehr, 2004, 546). This can prove to be difficult, as the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the primary body for monitoring freedom of the press and information, reported “that perpetrators of internet shutdowns often try to justify them as a ‘precautionary measure’ or as a matter related to ‘national security,’ ‘public safety,’ or ‘hate speech,’ when the underlying motivations appear strongly correlated with moments of political instability, protests, communal violence, or elections” (UNESCO, 2022, 51).
To ensure that derogations from freedom of the press, specifically those in the name of disinformation campaigns, are necessary, lawful, and transparent, UNESCO has recommended: that state restrictions freedom of the press include input from a variety of independent groups, civil society organizations, and research specialists (UNESCO, 2020, 14); that UNESCO partner with other United Nations bodies to guarantee that derogations from freedom of the press are ethical and do not violate the right more than necessary (12); that relevant media actors increase the capacity of independent press councils in their monitoring efforts (217).
References:
Australian Human Rights Commission. 2007. “What is the Universal Declaration on Human Rights?” Accessed July 5, 2024. https://humanrights.gov.au/our-work/commission-general/projects/what-universal-declaration-human-rights
Hafner-Burton, Emilie, Laurence Helfer, Christopher Fariss. 2011. “Emergency and Escape: Explaining Derogations from Human Rights Treaties.” Cambridge University Press 65, no.4. 673-707. https://doi.org/10.1017/S002081831100021X
Miller, David. 2004. “Information Dominance: The Philosophy of Total Propaganda Control?” in War, Media, and Propaganda: A Global Perspective, edited by Yahya Kamalipour and Nancy Snow. 7-16. https://books.google.com/books?hl=en&lr=&id=IyQeVFowLnwC&oi=fnd&pg=PR11&dq=war+propaganda+mediums&ots=ld3JH7kqKU&sig=HmizgQAGnNbDQew_MLGqn3h9_QU#v=onepage&q&f=false
Siehr, Angelika. 2004. “Derogation Measures under Article ICCPR, with Special Consideration of the War against International Terrorism.” German Yearbook of International Law, 47. 545-593. https://heinonline.org/HOL/Page?handle=hein.journals/gyil47&id=1&collection=journals&index=
United Nations Educational, Scientific, and Cultural Organization, International Telecommunication Union, Broadband Commission for Sustainable Development. 2020. “Balancing act: countering digital disinformation while respecting freedom of expression: Broadband Commission research report on ‘Freedom of Expression and Addressing Disinformation on the Internet'” https://unesdoc.unesco.org/ark:/48223/pf0000379015.locale=en
United Nations Educational, Scientific, and Cultural Organization. 2022. “Press Freedom in Times of Crisis and Transformation.” UNESCO Global Report 2021/2022: Journalism is a Public Good. 44-81. https://doi.org/10.18356/9789210015424c006
United Nations General Assembly. 1948. “Universal Declaration of Human Rights.” Accessed July 5, 2024. https://www.un.org/en/about-us/universal-declaration-of-human-rights
United Nations General Assembly. 1966. “International Convenant on Civil and Political Rights.” Office of the High Commissioner on Human Rights. Accessed July 5, 2024. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights
UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information. 2009. “Joint Statement on the Media and Elections.” Joint Declarations of the representatives of intergovernmental bodies to protect free media and expression, 2013. 53-56. https://www.osce.org/files/f/documents/5/5/99558.pdf