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Freedom of Expression and the Rule of Law[1]
Freedom of expression is essential to the rule of law. Restricting or prohibiting freedom of expression deprives the rule of law of its full effect and meaning, reducing it to an empty shell. While freedom of expression is crucial to all societies, its importance takes on particular significance forsocieties in transition where authoritarianism and dictatorships have left deep cultural and institutional wounds.
How societies view freedom of expression and its scope can help gauge the direction in which changes may likely progress. For instance, serious problems of all kinds, e.g., economic, political, social, security, sometimes give rise to attempts to reject a pluralist model of society where freedom of expression is vital in favor of authoritarian model in whole or part. Under a human rights framework, the rule of law - including the right to free expression – encompasses the values of human dignity and offers a roadmap for addressing societal problems, serving as an important alternative to strongmen who govern without checks and balances, or political or military vanguards who purport to “lead their nations or people.”
Within a human rights approach, freedom of expression is an essential check to the monopolization of information by powerful executives and societal elites. It assures that expression is not merely an exclusive function of governments or private monopolies. Dissemination and exchange of information is vital to making informed choices, facilitating individual participation in the democratic process, and strengthening civil society. Despite the human rights obligations and norms laid down in universal and regional instruments, full realization of the right to freeexpression, including the adoption of a normative framework, is the exception and not the rule.
Free expression may be seriously compromised through a variety of measures, e.g.: prior censorship, contempt laws, seizing or barring publications, excessive subsequent liability for libeland slander,lack of effective normative framework to prohibit the monopolization of information and to protect pluralism, and the existence of procedures thatsubject free expression or dissemination of information to government control.
Prior censorship is a vehicle through which, under justifications such as “national security,” “public order,” “protection of morals,” “truth in information,” and “personal honor,” bureaucracies choose what individuals can – and cannot - see, read, write, and produce. The possibilities for, and implications of, abusing prior censorship are immense. Ensuring thepromotion of free debate is essential to avoid censorship’s suffocation of free expression.
Contempt or desacato laws penalize “offensive” expression directed at public officials or against private individuals concerning matters relevant to the society at large. Such punishment or threat thereof is consistent with an authoritarian approach, and isincompatible with the full development of democracy and with the tenets of pluralism. Criticism free from fear of punishment—especially when directed at authority or matters of public interest —reaffirms, inter alia, egalitarian principles and ensures that public officials perform their duties with transparency and accountability.
Also severely curtailing the right of free expression of ideas is excessive subsequent liability for libel and slander, which is often invoked under the justification of “defense of honor.” Control of information by governments or monopolies is inconsistent with a pluralistic and democratic society. In addition to deficient regulatory frameworks, attacks against freedom of expression include “silencing” journalists through measures including assassination where impunity prevails. These measures serve as a stark reminder of the risk faced by anyone, including the most visible, who dares to fully exercise their right to free expression.
Other de facto“measures” that seriously infringe upon freedom of expression include economic measures that punish or reward the press for its ideas, as well as insufficient or inadequate legislation concerning public or private monopolies in information media. These grave normative and factual shortcomings in the legal protection for freedom of expression still exist within many domestic legal systems,reaffirming the need for internationalprotections of this fundamental freedom.
A series ofmeasures must be adopted to guarantee the full right to freedom of expression and thereby strengthen the rule of law.First, contempt laws should be abolished and defamation should result only in civil, not criminal, liability. Second, subsequent civil liability should be subject to strict regulation given its chilling effect on free expression.Third, defense of honor should be limited to natural persons and exclude institutions and thereby instances where, for example, expressing an opinion is charged as “slander against the National Armed Forces” or the like. While legitimate national security concerns within the framework of a democratic society may arise to restrict speech, extrapolating “honor” concepts designed to protect individuals is unjustifiable. Fourth, freedom of expression requires pluralism in the media and rejection of public and private monopolies. Accordingly, anti-monopoly laws should be developed and vigorously enforced. Pluralistic expression requires the addition of voices, not the suppression of expression. Fifth, transparency within the functions of government and private organizations should be encouraged. The establishment of domestic laws that guarantee free access to information held by government and private organizations is fundamental to achieving the full protection of freeexpression. Finally, the United Nations and its different mechanisms, treaty bodies and special procedures remain crucial actors, providing venues to promote and protect the right of freedom of expression when states are unable or unwilling to comply with their international obligation. The role of such actors, however, must be further expanded. For example, additional and targeted human rights training of civil servants, judges, lawyers and journalists about the right to freedom of expression could help increase awareness and implementation of international norms into the domestic realm. Such training could also play a preventative role to the extent that violations of the right to free expression result from lack of sufficient knowledge about this right. Coordination by the different treaty bodies and special procedures must also be expanded further. In this respect, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression could play an important role with further resources to develop initiatives with treaty bodies, e.g., precautionary measures to protect free expression, and harmonization of concluding observations related to freedom of expression, to name a few.
[1] By Claudio Grossman.