ICCPR

[W]hen a State party imposes certain restrictions on the exercise of freedom of expression;
these may not put in jeopardy the right itself. Paragraph 3 lays down conditions and it is only
subject to these conditions that restrictions may be imposed: the restrictions must be
`provided by law'; they may only be imposed for one of the purposes set out in sub
paragraphs (a) and (b) of paragraph 3; and they must be justified as `necessary' for that State
party for one of those purposes.1

African Charter on Human and Peoples’ Rights

The Charter's protection of freedom of expression, set forth in Article 9, differs from the
protection afforded by other treaties in that it does not expressly include a right to receive
ideas or to impart information. Article 9 is also unusual in that it does not include any express
restrictions. Rather it is subject only to the general restrictions set forth in Articles 27-29, the
most pertinent of which requires the individual to exercise protected freedoms "with due
regard to the rights of others, collective security, morality and common interest."

"Freedom of information is a fundamental human right and ... the touchstone of all of the
freedoms to which the United Nations is consecrated.2

Freedom of expression constitutes one of the essential foundations of such [democratic]

society, one of the basic conditions for its progress and for the development of every man.
Subject to Article 10(2), it is applicable not only to `information' or `ideas' that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of the population. Such are the demands of
that pluralism, tolerance and broadmindedness without which there is no `democratic
society'3

1
Report of the Human Rights Committee to the General Assembly, 38th Sess., Supp. No. 40, 1983 (A/38/40), Annexe VI, General
Comment 10.
2
G.A. Resolution 59(I), 14 Dec. 1946.
3
Handyside v. United Kingdom, para. 49. See also The Sunday Times v. United Kingdom, para. 64.
Freedom of expression is closely bound up with the democratic process. It serves not only
as a means and an instrument but also as an aim in itself. Freedom of expression is a superior
right which, together with the similar right to freedom of conscience, constitutes the
prerequisite to the realization of almost all other freedoms. The supreme value contained in
freedom of expression remains permanent and unalterable4

"freedom of political debate is at the very core of the concept of a democratic society"5

Freedom of thought and speech ... is the matrix, the indispensable condition of nearly every
other form of freedom6

 The State v. The Ivory Trumpet Publishing Co. [1984] 5 NCLR 736, High Court,
Enugu, 31 Jan. 1983.
 Voz de España case

The European Court has ruled that discussion about matters of legitimate public concern is
entitled to the full protection of Article 10 of the European Convention and, in particular, that
for purposes of Article 10 protection, "there is no warrant ... for distinguishing ... between
political discussion and discussion of other matters of public concern."7

"Whilst the press must not overstep the bounds set [for the protection of the interests set forth
in Article 10(2) of the European Convention] ... it is nevertheless incumbent on it to impart
information and ideas on matters of public interest. Not only does it have the task of
imparting such information and ideas: the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of `public watchdog'.8

Penalties against the press for publishing information and opinions concerning matters of
public interest are intolerable except in the narrowest of circumstances owing to their

4
Kol Ha'am Company Lmt & Al-Ittihad Newspaper v. Minister of the Interior, High Court 73/53, discussed in Selected
Judgments of the Israeli Supreme Court, Vol. I (1948-53), 90.
5
E.g., Lingens v. Austria, para. 42.
6
Palko v. Connecticut, 302 US 319 (1937).
7
Thorgeirson v. Iceland, para. 64.
8
Thorgeirson v. Iceland, para. 63; Castells v. Spain, para. 43; The Observer and Guardian v. United Kingdom (Spycatcher case),
para. 59(b); The Sunday Times v. United Kingdom (II) (companion Spycatcher case), para. 65.
likelihood of "deter[ring] journalists from contributing to public discussion of issues affecting
the life of the community".9

United States
The Supreme Court has made clear that press freedom is not to be confined to newspapers but
embraces every sort of publication:
These indeed have been historic weapons in the defence of liberty, as the pamphlets of
Thomas Paine and others abundantly attest. The press in its historic connotation comprehends
every sort of publication which affords a vehicle of information and opinion.10

Austria
The Constitutional Court ruled that, consistent with Article 10 of the European Convention,
government officials may not hinder the procurement of information accessible to the public
except when necessary to promote one of the aims listed in Article 10(2). The Court held that
destruction by the police of a journalist's film of a demonstration violated the journalist's
constitutional rights11

PG 138 ONWARDS – THREE POINT TEST, ECHR

The Constitutional Court (FCC) affirmed that journalists may not be prosecuted pursuant to
the Mosaiktheorie for publishing non-secret information collected from different sources,
even if pieced together so as to present an overall picture which could threaten national
security12

In a case against Madagascar, the Committee ruled that house arrest and detention violate the
right to freedom of expression even when the person detained has challenged the legitimacy
of the government. Monja Jaona, a leader of an opposition political party and a presidential
candidate, challenged the results of the 1982 presidential elections and called for a new
election. Shortly thereafter he was placed under house arrest and then detained at a military
camp. The Human Rights Committee found that his rights had been violated because
"he suffered persecution on account of his political opinions". Accordingly, the
9
Lingens v. Austria, para. 44.
10
Lovell v. City of Griffin, 303 US 444 (1938) (per Hughes CJ).
11
Decision of 16 March 1987, B154/85 (1987) HRLJ 365.
12
20 FCC 162 (1966) (Der Spiegel case).
Committee ordered that he be awarded compensation, and that the government take
steps to ensure that similar violations did not occur13

In a case against Iceland, the Court suggested that a person should not be held liable for
publishing allegations, especially regarding matters of serious public concern, that are based
on public opinion, "rumours", "stories" or the statements of others, so long as the nature of
factual support for the allegations is clearly stated. In this case, a journalist alleged that police
brutality was on the increase and called for measures to ensure better police oversight. He
made various factual allegations but was excused from having to prove their truth because he
had made clear that they were based in part on public opinion, rumours and stories.14

United States - The Court reasoned that

speech which "stirs ... to anger" or "invites dispute" is protected and that, in fact:
A function of free speech under our system of government is to invite dispute. It may indeed
best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger.15

LIBEL:
decisions which require an intent to incite violence (from Canada and UK); decisions (from
India, Namibia, Nigeria and Uganda) which apply the breach of the peace standard; and
decisions (from Kenya, Malaysia and Sierra Leone) which interpret seditious libel to
encompass expression that incites ill-will, but which have imposed a requirement of a high
evidentiary showing.’

Canada
The Supreme Court of Canada, in a 1951 case, stated a two-part test for the common law
crime of seditious libel. First, the seditious intention upon which a prosecution for seditious
libel must be founded is an intention to incite to violence or resistance. An intent, for
example, to "promote feelings of ill will and hostility between different classes of subjects"

13
M Jaona v. Madagascar, Communication No. 132/1982, Decision of 6 April 1985, 24th Session, Committee Report,
1985, Annex IX, para. 14.
14
Thorgeirson v. Iceland.
15
Terminiello v. Chicago, 337 US 1, 4 (1949) (per Douglas J).
will not suffice. Second, the intention of the violence must be to disturb "constituted
authority". (Justice Kellock)16

Some earlier English cases have suggested that an intention to publish words which have a
tendency to incite violence suffices to establish the mental element of the crime.17

The Supreme Court of India, in expressly declining to follow the Privy Council cases, ruled
that the statutory offence (Section 124A of the Indian Penal Code), like the common law, had
incitement to violence as its gist. This interpretation was necessary because otherwise the
offence would have contravened the guarantee of freedom of expression set forth in Article
19 of India's Constitution.18

Nigeria –
The Court held that the law of sedition allows restrictions on the right to free speech similar
to those stated in Article 19(2) of the Indian Constitution. Citing judgments of the Supreme
Court of India, the Court stated that in order to determine whether a law is reasonably
justifiable in a democratic society the context surrounding that law must be examined and, in
particular, the circumstances surrounding the passage of the legislation, the object of the law
and the mischief which the law was aimed at preventing. Taking into account the history of
the Nigerian sedition law and the nature of the Constitution now being applied, the Court
found that the law was not reasonably justifiable in a democratic society in the interests of
public order or safety19

Section 51 - The Court of Appeal unanimously held that relevant sections of the Criminal
Code were invalid because they violated the right to freedom of expression guaranteed by the
Constitution and were not saved by the constitutional provision which permits derogation
from the right to freedom of expression in the interest of public order and safety. The Court
of Appeal found the sections particularly unsatisfactory because they did not provide for a

16
Boucher v. the King [1951] 2 DLR 369, 389. See also UK case: R v. Chief Metropolitan Stipendiary Magistrate ex parte
Choudhury [1991] 1 QB 429
17
R v. Aldred [1909] 22 Cox 1.
18
Kedar Nath Singh v. State of Bihar [1962] Supp. SCR 769.
19
The State v. The Ivory Trumpet Publishing Co., [1984] 5 NCLR 736, High Court, Enugu, 31 Jan. 1983.
defence of truth and could lead to conviction even in the absence of any evidence that
publication was likely to lead to a breakdown in public order. The Court emphasized the
availability of other remedies for intemperate speech, such as the offence of spreading false
news and the crime and tort of defamation.20

Malaysia
The High Court of Malaysia acquitted Param Cumaraswamy, then President of the Bar
Council, of having uttered seditious words on the ground that, taking into consideration all
the circumstances of the case, his statement did not have the tendency to promote ill will and
hostility between different classes of people or against the Ruler.21

European Court of HR –
Freedom of the press affords the public one of the best means of discovering and forming an
opinion of the ideas and attitudes of political leaders. More generally, freedom of political
debate is at the very core of the concept of a democratic society ... . The limits of acceptable
criticism are, accordingly, wider as regards a politician as such than as regards a private
individual. Unlike the latter, the former inevitably and knowingly lays himself open to close
scrutiny of his every word and deed ... and he must consequently display a greater degree of
tolerance.22

Chile - The Constitutional Court reversed a criminal conviction for defamation resulting from
the publication of a story about the involvement of two politicians in the 1939 invasion of
Poland. The Court based its ruling on considerations that the article contributed to a political
debate and that public figures must accept a greater degree of criticism about their public
actions than private persons.23

New York Times v. Sullivan 376 U.S. 254 (1964). Justice Brennan, writing for the majority,
criticized those statutes which required defendants to prove the truth of their statements about
public officials on the grounds that: "Under such a rule, would-be critics of official conduct

20
Chief Arthur Nwanko v. the State, FCA/E/111/83 (Fed. CA: Enugu), [1985] 6 NCLR 228.
21
Public Prosecutor v. Cumaraswamy [1986] 1 Malaysian Constitutional Law Journal 101 (High Court); 12 Common L
Bull (1986), 663.
22
Lingens v. Austria, para. 42.
23
43 FCC 130 (1976) (Politisches Flugblatt case).
may be deterred from voicing their criticism, even though it is believed to be true and even
though it is in fact true, because of doubt whether it can be proved in court or fear of the
expense of having to do so. They tend to make only statements which steer far wider of the
unlawful zone. The rule thus dampens the vigour and limits the variety of public debate ...."

USA –
“the right of the public to be informed was much more important than the individual's right to
his reputation."24

DEFENCES
Barbados -
The plaintiffs, the owners of a poultry production plant, sued a newspaper for having
published articles claiming that the plant engaged in unsanitary procedures and unfair labour
practices. The High Court ruled that the defence of fair comment protected statements of fact
as well as opinion when the statements were made in good faith and concerned a matter of
public interest, even though possibly false.25

South Africa –
A South African trial court ruled that public interest may be a defence to a defamation action
even where certain factual statements are shown to be untrue. Lieutenant-General Neethling
had brought a R1.5 million defamation suit against Vrye Weekblad and the Weekly Mail for
their publication of allegations that he had supplied poison for the sedation and killing of
political activists. The court held that, although the Weekly Mail had printed allegations about
poisoned alcohol which had not been proven to be true, in the particular circumstances of the
case, Lieutenant-General Neethling's reputation was less important than the public's right to
know26

Fernando v. Sri Lanka Broadcasting Corporation and Others, 30 May 1996, SC Application
NO. 81/95, p. 16. - Justice of India should be disclosed.
In a closely related development, the Supreme Court of Sri Lanka noted that a right to

24
Mwelwa Chibesakunda v. The Post Newspapers Ltd. (1992) HP/563; Robinson Nabulyato v. The Post (1992) HP/611; Lawrence
Mutakasha v. The Post (1992) HP/194; Francis Kaunda v. The Post (1991) HP/1295.
25
McDonald Farms Ltd v. Advocate Company Ltd, High Court of Barbados, 31 July 1990, Suit No. 344 of 1989, in 18
Commonwealth Law Bulletin 504 (1992).
26
General Lothar Paul Neethling v. Max du Preez, WLD 18 Jan. 1991, Case Nos. 34650/89 and 34969/89).
freedom of information, while not necessarily included within the guarantee of freedom of
speech, for that “would be to equate reading to writing, and listening to speaking” may well
be part of the guarantee of freedom of thought and opinion. At issue in that case was the
abrupt cancellation of a regular programme broadcast by the State broadcaster, the Sri Lanka
Broadcasting Corporation, which included material critical of government. The petitioner
claimed that his freedom of speech as a listener had been infringed by the stoppage inasmuch
as the government had limited his access to information. The Court noted that, “information
is the staple food of thought, and that the right to information, simpliciter, is a corollary of the
freedom of thought”

The Inter-American Court of Human Rights has declared that:

When freedom of expression is violated ... it is not only the right of that
individual [journalist] that is being violated, but also the right of all others to
`receive' information and ideas.27
Ireland
The High Court, in dismissing charges of seditious libel against several
journalists, declared in an 1868 case:

Our civil liberty is largely due to a free press, which is the principal
safeguard of a free state, and the very foundation of a wholesome public
opinion.28
Spain
The Constitutional Court observed that, under Spain's Constitution, the right
to freedom of expression has "a dimension of institutional guarantee,
protecting the freedom of public opinion". This feature confers on the right to
freedom of expression "a value which is beyond that which is common to
every fundamental right".29
United States

27
Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, para. 30.

R v. Sullivan and R v. Pigot [1868] 11 Cox CC 44.

28

29
Soria Semanal case, STC 105/86, Boletín de Jurisprudencia Constitucional 64/65, 1048.
The Supreme Court has made clear that press freedom is not to be confined
to newspapers but embraces every sort of publication:
These indeed have been historic weapons in the defence of liberty, as the
pamphlets of Thomas Paine and others abundantly attest. The press in its
historic connotation comprehends every sort of publication which affords a
vehicle of information and opinion.30

30
Lovell v. City of Griffin, 303 US 444 (1938) (per Hughes CJ).