Commission work | ICCPR Article 19 | International scrutiny | Common law protection | Constitutional protection | State human rights laws | Freedom of expression in other instruments | More information and links | Comments
For information on Commission work in this area see our project page on freedom of information, opinion and expression
ICCPR Article 19 states:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include 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 exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore 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;
( b ) For the protection of national security or of public order (ordre public ), or of public health or morals.
Limitations permitted under Article 19.3 are discussed in detail in the resources linked below and in summary on our permissible limitations page
- General Comment 10: Freedom of Opinion : now replaced by General Comment 34, issued in 2011.
- Full text of General Comment 34 on Human Rights Committee site; also available from bayefsky.com
General comment 34
General Comment 34 emphasises that freedom of expression and opinion are the foundation stone for a free and democratic society and a necessary condition for the promotion and protection of human rights. This General Comment addresses in detail:
- freedom of opinion
- freedom of expression
- freedom of expression and the media
- the right to access to information
- the importance of freedom of expression in a democratic society
- the application of Article 19.3 on permissible limitations on freedom of information and expression
- the scope for limitations on freedom of expression in certain areas
- the relationship between articles 19 and 20.
Freedom of information and expression and democracy
General Comment No. 25 deals with freedom of expression in the context of participation in public affairs and the right to vote. The Human Rights Committee has stated that:
Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves. This participation is supported by ensuring freedom of expression, assembly and association. …
In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. It requires the full enjoyment and respect for the rights guaranteed in articles 19, 21 and 22 of the Covenant, including freedom to engage in political activity individually or through political parties and other organizations, freedom to debate public affairs, to hold peaceful demonstrations and meetings, to criticize and oppose, to publish political material, to campaign for election and to advertise political ideas.
Issues regarding freedom of expression in Australia have been considered through the complaints procedure under the Optional Protocol as follows:
Coleman v Australia (2006)
The Committee's views and Australia's responses are available on the Attorney-General's page on human rights communications.
Mr Coleman was convicted under Queensland law for giving a public address in a pedestrian mall without a permit.
The Committee rejected Australia's arguments that the complaint was inadmissible and unsubstantiated.
The Committee found:
- the author’s arrest, conviction and sentence undoubtedly amounted to a restriction on his freedom of expression
- the restriction was prescribed by law
- while freedom of speech could be subject to restrictions in the interests of public order, these restrictions could not be such as to be incompatible with Article 19
- there was no evidence that Mr Coleman's conduct had been unduly disruptive
- the restriction applied to Mr Coleman was disproportionate
- there was thus a violation of Article 19.
In its response Australia rejected the Committee's finding of a violation and argued that the permit system in operation was necessary to protect the rights of other users of the mall.
The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has produced an exetnsive range of materials.
His issues in focus page includes links to materials on :
- Academic freedom and public demonstrations | Access to information | Access to information in situations of extreme poverty | Administrative and legal measures and repressive measures in connection with the media | Broadcasting | Censorship, suspension, closing or banning of media outlets | Children and the right to freedom of opinion and expression | Community-based media | Counter-terrorism measures and freedom of expression | "Defamation of religion" Detention or arrest, bringing of charges, trial and sentencing | Diversity of media | Digital divide |Duties and responsibilities | Events of 11 September 2001| Freedom of expression and the realization of other human rights | Freedom of expression to combat discrimination | Freedom of opinion | Harm to media personnel and others: killings, attacks, threats, harassment | Hate speech | HIV/AIDS and freedom of expression and access to information |Internet governance | Indigenous people and the right to freedom of opinion and expression | Minorities and the right to freedom of opinion and expression | National security | Nature and the scope of the right to freedom of opinion and expression | New information technologies | Non-state actors | Notion of freedom | Police and criminal justice system | Public order and limitations to freedom of expression | Public health and limitations to freedom of expression | Public morals and limitations to freedom of expression |Safety and protection of journalists and media professionals, including in conflict zones | States of emergency | Restrictions and limitations to the right to freedom of expression | Right to seek and receive information | World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance | Women and freedom of expression
(For technical reasons regarding the operation of the United Nations website, links from this Commission page directly to the documents on the Special Rapporteur's page are not currently possible. Users are encouraged to refer to these materials using the links on the Special Rapporteur's issues in focus page.)
A well established principle of statutory interpretation in Australian courts is that Parliament is presumed not to have intended to limit fundamental rights, unless it indicates this intention in clear terms. This includes freedom of expression. See our page on common law rights and parliamentary scrutiny .
The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.
In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106, the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in Unions NSW v New South Wales  HCA 58.
In Nationwide News it was said that:
- Once it is recognised that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains (Justice Brennan at 48- 9).
- No law of the Commonwealth can restrict the freedom of the Australian people to discuss governments and political matters unless the law is enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose ( Justice Brennan at 50).
- The doctrine presupposes an ability of represented and representatives to communicate information, needs, views, explanations and advice. It also presupposes an ability of the people of the Commonwealth as a whole to communicate, among themselves, information and opinions about matters relevant to the exercise and discharge of governmental functions on their behalf (Justices Deane and Toohey at 72).
In Australian Capital Television it was said that:
- The efficacy of representative government depends upon the free communication on such matters [in relation to public affairs and political discussion] between all persons, groups and other bodies in the community. That is because individual judgment, whether that of the elector, the representative or the candidate, on so many issues turns upon free public discussion in the media and the views of all interested persons, groups and bodies and on public participation in, and access to, the discussion. In truth, in a representative democracy, public participation in political discussion is a central element on the political process: Chief Justice Mason at 139.
- There are no limits to the range of matters that may be relevant to debate in the Commonwealth Parliament or to its workings. The consequence is that the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a particular matter at a given time might appear to have a primary or immediate connection with the affairs of a State, a local authority or a Territory and little or no connection with Commonwealth affairs. To take one example, the Parliament provides funding for the State governments, Territory governments and local governing bodies and enterprises. That continuing inter-relationship makes it inevitable that matters of local concern have the potential to become matters of national concern" Chief Justice Mason at 142.
The precise nature of the implied freedom of political communication remained uncertain following these two cases. Chief Justice Mason described the implied freedom as a ‘freedom of communication in relation to public affairs and political discussion’. Justice Brennan referred to the ‘freedom of the Australian people to discuss governments and political matters’. Justices Deane and Toohey considered that ‘the Constitution’s implication of freedom of communication extends to all political matters, including matters relating to other levels of government within the national system’. Justice McHugh offered a narrower interpretation of the implied freedom, which focused closely on the requirements of specific sections of the Constitution. He argued that the ‘people have a constitutional right to convey and receive opinions, arguments and information concerning matter intended or likely to affect voting in an election for the Senate or the House of Representatives’.
In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court unanimously asserted that the implied freedom of political communication does not confer any personal rights to freedom of speech, but operates as a constraint of legislative and executive power. The Court held that:
- Although it is true that the requirement of freedom of communication is a consequence of the Constitution’s system of representative and responsible government, it is the requirement and no the right of communication that is to be found in the Constitution. Unlike the First Amendment to the US, which has been interpreted to confer private rights, our Constitution contains no express right of freedom of communication or expression. Within our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution .
- To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections. Although some statements in the earlier cases might be thought to suggest otherwise, when they are properly understood, they should be seen as purporting to give effect only to what is inherent in the text and structure of the Constitution .
In APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, Gleeson CJ and Heydon J re-emphasised that the freedom was not a general freedom of communication of the kind protected by the United States Constitution.
The types of communication that might be within the scope of the freedom include
‘signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it’ : Levy v Victoria (1997) 189 CLR 579: Justice Brennan at 595; Justice McHugh at footmote 109; Chief Justice Brennan at 594; Justice Kirby at 638–41.
In Unions NSW v New South Wales provisions of NSW law which prohibited persons or organisations other than enrolled electors from making donations in support of electoral campaigns were held to invalidly restrict the implied freedom of political communication. The Court confirmed that:
- the implied freedom applies to restrictions by State as well as Commonwealth law and regarding State as well as Federal electoral matters.
- the implied freedom is not absolute but extends only so far as is necessary to preserve the system of representative government instituted by the Constitution.
Section 16 of the Human Rights Act 2004 (ACT) states that:
- Everyone has the right to hold opinions without interference.
- Everyone has the right to freedom of expression. This right includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of borders, whether orally, in writing or in print, by way of art, or in another way chosen by him or her.
The rights in this act are subject to section 28:
- Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.
- In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
a. the nature of the right affected;
b. the importance of the purpose of the limitation;
c. the nature and extent of the limitation;
d. the relationship between the limitation and its purpose;
e. any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
Section 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) provides:
- Every person has the right to hold an opinion without interference.
- Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether-
(a) orally; or
(b) in writing; or
(c) in print; or
(d) by way of art; or
(e) in another medium chosen by him or her.
3. Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-
(a) to respect the rights and reputation of other persons; or
(b) for the protection of national security, public order, public health or public morality.
The Convention on the Rights of the Child recognises the right to freedom of expression and information in the same terms as ICCPR Article 19. As with other rights recognised in the CRC this provision should be read with Article 5, which states:
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.
Article 17 goes on to state:
States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:
(a) Encourage the mass media to disseminate information and material of social and cultural benefit to the child and in accordance with the spirit of article 29;
(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;
(c) Encourage the production and dissemination of children's books;
(d) Encourage the mass media to have particular regard to the linguistic needs of the child who belongs to a minority group or who is indigenous;
(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of articles 13 and 18.
The Convention on the Rights of Persons with Disabilities recognises that people with disability have the rights to freedom of expression and information which are recognised for all people in ICCPR Article 19. The CRPD also goes on to
- make clear that positive measures and not only non-interference are needed to ensure the enjoyment of these rights and
- specify some of the measures needed.
Article 21 states that:
States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:
a. Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;
b. Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions;
c. Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities;
d. Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities;
e. Recognizing and promoting the use of sign languages.
Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms states that:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The First Amendment to the Constitution of the United States states a right to freedom of speech and press freedom in more absolute terms than Article 19 of the ICCPR or the equivalent provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Congress shall make no law … abridging the freedom of speech or of the press …
The text is unqualified. However, the United States Supreme Court has interpreted the right as subject to some restrictions:
‘the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent’: Schenck v United States 249 US 47 at 52 (1919). This was later refined to the extent that free speech could be restricted without contravening the First Amendment where it is likely to incite or produce imminent lawless action: Brandenburg v Ohio 395 S 444 at 447 (1969).
The Supreme Court has held that defamation law is subject to the principles of the First Amendment. Criticism of public officials and public figures will not give rise to liability in an action for defamation in the US, unless ‘actual malice’ can be proved against the defendant: New York Times Co v Sullivan 376 US 254 (1964). However, the First Amendment protection afforded to criticism of public officials and public figures does not extend to defamatory statements made in relation to private individuals. Public figures ‘invite attention and comment’, whereas private individuals ‘have not accepted public office or assumed an influential role in ordering society’ : Gertz v Robert Welch, Inc 418 US 323 at 341–46 (1974).
- Attorney-General's Department Guidance Sheet
- Freedom of expression : a guide to the implementation of Article 10 of the European Convention on Human Rights (PDF): European Court factsheet (2004)
- UNESCO program on freedom of expression
- Article 19: Global Campaign for Free Expression including Camden Principles on Freedom of Expression and Equality
- International Freedom of Expression Exchange including Australia country page
- "Power, Protection & Principles - the state of press freedom in Australia in 2013" Media Entertainment and Arts Alliance 28 May 2013
- Electronic Frontiers Australia
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