Freedom of speech has been defined as the right to communicate one's opinions and ideas without fear of government retaliation or censorship. The term freedom of expression is also used sometimes, but with the connotation that it includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used.
Academics, activists, media representatives and politicians have sought to point out that the proposed Digital Security Act is such an effort by the government to restrict freedom of speech and expression. They also believe that some of the measures being adopted to fight abuse of civic rights will essentially curtail basic rights of the people.
They refer to the Law of Torts and underline that common limitations on speech relating to libel, slander, obscenity, pornography, sedition, incitement, classified information, copyright violation, trade secrets, non-disclosure agreements, right to privacy, public security, public order, public nuisance and any form of oppression can be dealt with under the Penal Code.
They are also referring to the Harm Limitation Principle and urging that limitations be justified under this principle depending upon whether any expression might influence a third party's opinions or actions adversely to the second party. The term "offence principle" is also used to expand the range of free speech limitations to prohibit forms of expression where they are considered offensive to society, special interest groups or individuals. For example, freedom of speech is limited in many jurisdictions to widely differing degrees by religious legal systems or codes meant to stop incitement towards ethnic or communal hatred.
The right to freedom of expression is recognised as a human right under Article 19 of the Universal Declaration of Human Rights and recognised in international human rights law through the International Covenant on Civil and Political Rights (ICCPR). Article 19 of the ICCPR states that "everyone shall have the right to hold opinions without interference" and "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". Article 19 additionally states that the exercise of these rights carries "special duties and responsibilities" and may "therefore be subject to certain restrictions" when necessary". This would particularly pertain to "respect of the rights or reputation of others" or "for the protection of national security or of public order, or of public health or morals".
Concepts of freedom of speech and expression have gradually evolved over time. Early human rights documents like England's Bill of Rights, 1689 legally established the constitutional right of "freedom of speech in Parliament". Subsequently the Declaration of the Rights of Man and of the Citizen adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right. The Declaration provided for freedom of expression in Article 11, which states that: "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law". Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
Today, freedom of speech, or the freedom of expression, is also recognised in international and regional human rights law. The right is enshrined in Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples' Rights. One is reminded in this regard of John Milton and his observation that freedom of speech needs to be understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects: the right to seek information and ideas; the right to receive information and ideas and the right to impart information and ideas. International, regional and national standards also recognise that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the Internet or through art forms. This means that the protection of freedom of speech as a right includes not only the content, but also the means of expression.
Freedom of speech and freedom of expression are very closely inter-related. For example, the right to freedom of expression is related to the right to a fair trial and court proceeding which may limit access to the search for information or determine the opportunity and means in which freedom of expression is manifested within court proceedings.
As a general principle freedom of expression may not limit the right to privacy, as well as the honour and reputation of others. This has assumed special importance given the advent of digitalisation and social and mixed media. However, greater latitude is sometimes given when criticism of public figures is involved.
It is generally agreed that the right to freedom of expression is particularly important in today's world for all the different forms of the media - broadcast, print, electronic and digital. This is so because they play a special role as the bearer of the general right to freedom of expression for all. However, Judith Lichtenberg, professor of philosophy at Georgetown University, has outlined certain conditions whereby freedom of the press might constrain freedom of speech. This would be applicable if, for example, the media suppresses information or stifles the diversity of voices inherent in freedom of speech. Lichtenberg has argued that, at times freedom of the press is used simply as a form of property right where the principle of "no money, no voice" applies in most situations.
Freedom of speech is generally accepted as being fundamental in a democracy. The norms on limiting freedom of expression or public debate are consequently interpreted as being unacceptable even in times of emergency. One of the most notable proponents of the link between freedom of speech and democracy has been Alexander Meikejohn of Brown University. He has argued that the concept of democracy is that of self-government by the people. He has correctly put forward the idea that for such a system to work an informed electorate is necessary. As such, in order to be appropriately knowledgeable, there must be no constraints on the free flow of information and ideas. Accordingly, democracy will suffer and fail to reach its potential if those in power are able to manipulate the electorate by withholding information and stifling criticism. Such manipulation will negate the democratic ideal.
The World Bank attaches particular importance to freedom of speech. It is a factor which receives attention in formulating their Worldwide Governance Indicators for nearly 200 countries. This is done because such freedom is understood to facilitate transparency and accountability that has a significant impact in the quality of governance within a country.
However, while advocating freedom, one also needs to remember that the State has to look after the interests of all its citizens irrespective of colour, gender, religious belief or ethnic background. If any of these stakeholders suffer then the entire paradigm is affected. We need to remember in this regard the unfortunate efforts undertaken by the Dutch cartoonist Kurt Westergaard that alienated people of the Islamic faith throughout the world, including many from other faiths. That fiasco proved that freedom is a human right but it does not mean that tangential reference can be made against others that will affect their rights related to freedom. That cannot be associated as acceptable democratic behaviour.
This is a sensitive paradigm and one needs to tread within this matrix with caution. It must also be understood that interpretations of both the harm and offence limitations to freedom of speech are culturally and politically relative. For instance, in Russia, the harm and offence principles have been used to justify the Russian LGBT propaganda law restricting speech (and action) in relation to LGBT issues. A number of European countries, that take pride in freedom of speech, also outlaw speech that might be interpreted as Holocaust denial. These include Austria, Belgium, Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Netherlands, Poland, Portugal, Slovakia, and Switzerland.
There are various dimensions related to the question of freedom of expression. Advocates from different sides have their own explanations. However, one aspect is undeniable: discussion is knowledge in the making. We need to undertake such a course of action. At the same time, the different stakeholders have to remember that decisions need to be based on the principle contained in the constitutional guarantees of free speech and free press. However, the State also has the right to take pre-emptive action to ensure that deliberate violations aimed at creating or inciting lawlessness or disrupting of stability or communal harmony in the name of politics does not harm its citizens or disrupt their basic rights to pursue socio-economic activities or education or healthcare.
The writer, a former Ambassador, is an analyst specialised in foreign affairs, right to information
and good governance.
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