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Freedom of expression and some considerations

Published : Sunday, 10 February, 2019 at 12:00 AM  Count : 851
Amir Mohammad Sayem

Amir Mohammad Sayem

Amir Mohammad Sayem

Freedom of expression--one of the most significant and substantive human rights recognized in the Universal Declaration of Human Rights or the UDHR and the International covenant on Civil and Political Rights or the ICCPR--indicates the freedom of an individual or a community to articulate opinions and ideas without fear of retaliation, censorship, or any legal sanction. Article 19(1) of the UDHR clearly states that everyone shall have the right to hold opinions without interference and article 19(2) of the same document states that everyone shall have the right to freedom of expression. Moreover, this right includes 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. Often, this right is interchangeably used with the concept of freedom of speech, although there are some differences. The concept of freedom of expression broadly includes freedom of speech and other expressions including self-expression without any interpersonal communicative intent.

Without doubt, freedom of expression is especially related to traditional media (newspaper, television and radio), internet, civil society organizations, journals, books and others (including artworks, dramas, movies and cartoons) which play vital roles through facilitating dissemination of information and ideas and enhancing access to information including public information and official documents, enabling people to gain knowledge (scientific, technical, theoretical, social, etc.), making people capable of which policies to support, improving democracy, securing good governance with increased accountability and transparency, leading to reduction of repression and violations of other human rights, correcting unacceptable social norms, etc. Of these, however, print and electronic media as public watchdogs play vital roles as a important means of freedom of expression in the contemporary world through providing guarantee that different voices will be heard by, and reached to, the general public. Without freedom of media or press, moreover, violations of human rights may largely remain hidden.

As expected, freedom of expression, as the primary end and an important means of further ends, brings enormous positive impacts on individuals, community and society. This right, moreover, is linked with, and upholds, many other rights such as the right to information, the right to fair trial, freedom of association, the right to assemble, the right to protest, the right to vote, etc. Indeed, freedom of peaceful assembly and association and the right to protest allow individuals to come together for the expression and protection of their common interests and, with the right to vote, people express their choices of candidates. Surely, there are bi-directional relations between freedom of expression and these rights; thus, protection of these rights protects freedom of expression, at least on some grounds, and vice versa. For all of these, more importantly, this right positively contributes to the flourishment of individuals and societies.

Freedom of expression, however, is grossly violated across the world by different state and non-state actors--governments, security forces, armed groups, religious leaders, community members, family members, political activists, etc--with some variations. Certainly, such a right is denied in number of legal and illegal ways including enactment of controversial regulatory laws, imposing unreasoned restrictions on television and radio broadcasting, refusals of reasonable access to information through blocking websites, closing and suspending print and electronic media and establishing arbitrary censorship on books, movies, music, press, etc. Some other techniques like intimidation, assaults, killings, criminal persecution, etc. are also used to unreasonably restrict freedom of expression. Definitely, some individuals and groups, particularly political opponents, minorities, refugees, women, journalists and human rights defenders, face greater barriers to freedom of expression.

The positive aspect is that freedom of expression is firmly protected in various international treaties, regional human rights instruments and domestic human rights laws. In reality, however, legal measures are inadequate, incomplete and often conflicting. Indeed, there is a worrying global trend of governments unjustifiably limiting freedom of expression on various unreasoned grounds. It is also criticized that governments pay mere lip services to this right in almost every constitution in the world. Nevertheless, measures for protecting freedom of expression and other rights, which promote and are associated with freedom of expression, are more inadequate and less effective in less democratic and authoritative countries, although there are considerable criticisms that relevant laws are curtailing protest activities and threatening press freedom and free speech in different western democracies.

Two principles--harm principle of John Stuart Mill and offense principle of Joel Feinberg--can be specially mentioned here. The harm principle holds that the actions of individuals should only be limited to prevent harm(s) to other individuals. Regarding freedom of expression, it indicates that one's freedom of expression should not cause harms to others or the rights of others. The offense principle states that freedom of expression should be restricted in order to prevent offense to others. Indeed, many human rights documents place limits on freedom of expression dye to the harm and offense that unlimited freedom can cause. As expected, some restrictions on such a right in various aspects--libel, slander, obscenity, pornography, sedition, the right to privacy, security of the State, hate speech, violent speech, perjury, contempt of court, etc.--are considered to be reasonable based on these principles.

The vital concern with these principles, however, is that none of these actually pays adequate respects to autonomy of individuals and their ability to make choices and judgments. Indeed, harms to others may be brought on both legitimate and illegitimate grounds, which are reasonably subject to perspectives of competing groups. Often, state perspective and/or perspectives of governments are used in making legislation, which may not legitimately or reasonably reflect competing perspectives of others always. Also, different people may perceive to be offended by different things, thereby, indicating the difficulty of the application of offense principle. More importantly, governments often point to either one or both principles to justify restrictions on freedom of expression with arbitrarily made coercive provisions in different related legislative measures including digital or cyber act and broadcast act.

Of course, upholding freedom of expression based on absolutist view--which states that freedom of expression is absolute and there are no legitimate reasons to regulate such a right--is not reasonable, as such a position can lead to violations of other rights including the right to privacy and make chaos in any society. Simultaneously, arbitrary restrictions of freedom of expression through pointing to the above principles are surely unreasonable. In order to protect freedom of expression, freedom of press and other associated rights, thus, relevant legislative measures need to be revised in different countries, particularly having controversial and inadequate legal measures, with reasonable assessment and justifications of competing interests, protection of individuals' autonomy as much as possible and rejection of mere political interests of governments in the name of interests of state, public order, etc.

Along with reasonable legislative revisions, other measures are needed for addressing various concerns with freedom of expression. In this regard, awareness raising programs are needed for generating respects to such a right at family, community and society. Certainly, security of different stakeholders including journalists and human rights defenders must be ensured. Additionally, various organizations including human rights organizations and other related civil society organizations need to be more engaged for promoting and protecting such a right and other associated rights. Finally, strengthened international monitoring mechanism of, and cooperation from, intergovernmental organizations, particularly the Office of the High Commissioner for Human Rights, is important for upholding freedom of expression and other associated rights for all human begins across the world on more justifiable grounds.

The writer is a contributor to the Daily Observer

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