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Legal Standards on Freedom of Expression. Toolkit for the Judiciary in Africa

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Legal Standards on Freedom of Expression. Toolkit for the Judiciary in Africa Legal Standards on Freedom of Expression. Toolkit for the Judiciary in Africa 1 Published in 2018 by the United Nations Educational, Scientific and Cultural Organization 7, place de Fontenoy, 75352 Paris 07 SP, France © UNESCO 2018 ISBN 978-92-3-100301-1 This publication is available in Open Access under the Attribution-ShareAlike 3.0 IGO (CC-BY-SA 3.0 IGO) license (http:// creativecommons.org/licenses/by-sa/3.0/igo/). By using the content of this publication, the users accept to be bound by the terms of use of the UNESCO Open Access Repository (http://en.unesco.org/open-access/terms-use-ccbysa-en). The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. The ideas and opinions expressed in this publication are those of the authors; they are not necessarily those of UNESCO and do not commit the Organization. This toolkit was prepared by Avani Singh, ALT Advisory It received the valuable feedback contribution from the following peer reviewers: • Justice Ben Kioko, Vice President, African Court on Human and Peoples Rights • Padraig Hughes, Legal Director, Media Legal Defence Initiative • Anneke Meerkotter, Litigation Director, Southern Africa Litigation Centre • Jaco Du Toit, UNESCO Regional Adviser for Communication and Information, UNESCO Nairobi Office • Guilherme Canela, Regional Adviser for Communication and Information, UNESCO Montevideo Office • Konstantinos Tararas, Programme Specialist, Inclusion and Rights Section, Social and Human Sciences Sector, UNESCO Project coordination: Mehdi Benchelah, Senior Project Officer, Division for Freedom of Expression and Media Development, Communication and Information Sector, UNESCO Graphic design: Oscar Castellanos Cover design: Oscar Castellanos Typeset: Oscar Castellanos Printed by: UNESCO Tables and images: p. 17, 18 © The Advocates for Human Rights p. 32 © International Justice Resource Center p. 149, 150 © Access Now p. 198, 201 © Tactical Technology Collective Printed in France 2 Legal Standards on Freedom of Expression Toolkit for the Judiciary in Africa This publication was supported by: Multi-Donor Programme on Freedom of Expression and Safety of Journalists PROTECT JOURNALISTS AND FREEDOM OF EXPRESSION, VISIT: en.unesco.org/foe/special-account Legal Standards on Freedom of Expression. Toolkit for the Judiciary in Africa CONTENTS List of Acronyms 8 Foreword 9 Introduction 12 Overview 13 MODULE 1: INTERNATIONAL AND REGIONAL LEGAL FRAMEWORKS 16 Fundamental principles of human rights law 16 Sources of law 19 The importance of the right to freedom of expression 21 The regional and international framework relating to freedom of expression 22 The application of freedom of expression standards by the regional and sub-regional courts 31 Rights must be protected both offline and online 35 Test your knowledge: Q&A 40 Group activities 42 Individual analysis 44 Resources 45 MODULE 2: LEGITIMATE RESTRICTIONS ON FREEDOM OF EXPRESSION 47 Limitations clauses in international treaties 47 Justifiability of a limitation:The three-part test 53 Criminal defamation and other criminal laws limiting freedom of expression 63 Prohibited speech 65 Derogations of rights 68 Test your knowledge: Q&A 70 Group activities 72 Individual analysis 74 Resources 76 MODULE 3: THE RIGHT TO ACCESS INFORMATION 79 The importance of the right of access to information 79 The United Nations Sustainable Development Goals, access to information and development 83 The legal framework on the right of access to information 85 The Model Law on Access to Information for Africa 89 Guidelines on Access to Information and Elections in Africa 93 The Extractive Industry Transparency Initiative 99 The Open Government Partnership 100 The African Platform on Access to Information 101 The impact of the internet on the right of access to information 102 Challenges in realising the right of access to information 102 Test your knowledge: Q&A 104 Group activities 107 6 Individual analysis 108 Resources 109 MODULE 4: SAFETY OF JOURNALISTS AND THE ISSUE OF IMPUNITY 111 The importance of journalists and the media 111 What is journalism? 113 Legal protection for journalists under international law 115 Attacks on journalists and the issue of impunity 118 The protection of sources, encryption and anonymity 123 Measures to ensure the safety of journalists and accountability for perpetrators 126 Test your knowledge: Q&A 137 Group activities 140 Individual analysis 141 Resources 143 MODULE 5: PROTECTING FREEDOM OF EXPRESSION IN THE DIGITAL AGE 146 Contemporary challenges to freedom of expression 146 Internet shutdowns and the blocking/filtering of content 148 Intermediary liability 157 Access to the internet and the need for digital literacy 159 The impact of social media 160 Hate speech online 162 Harassment and threats online 165 ‘Fake news’, disinformation and propaganda 166 Data protection and the ‘right to be forgotten’ 171 Regulatory challenges regarding freedom of expression online 173 Jurisdiction and the borderless exercise of freedom of expression online 174 Test your knowledge: Q&A 176 Group activities 179 Individual analysis 182 Resources 183 MODULE 6: A GENDERED PERSPECTIVE ON FREEDOM OF EXPRESSION 186 The gendered dynamic to freedom of expression: The double attack 186 Media diversity and gender equality 193 Physical attacks on female journalists 195 Attacks against women online 197 Glossary of terms: What types of attacks do women face online? 201 How can the internet be made a safe space? 205 Concluding Remarks 208 Test your knowledge: Q&A 210 Group activities 212 Individual analysis 214 Resources 215 How to use this toolkit? 217 7 Legal Standards on Freedom of Expression. Toolkit for the Judiciary in Africa List of Acronyms ACHPR African Commission on Human and Peoples’ Rights ACRWC African Charter on the Rights and Welfare of the Child AU African Union CRPD Convention on the Rights of Persons with Disabilities EAC East African Community EACJ East African Court of Justice ECOWAS Economic Community of West African States ECtHR European Court on Human Rights HRC United Nations Human Rights Council HRCtte United Nations Human Rights Committee IACHR Inter-American Commission on Human Rights ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social and Cultural Rights ICTs Information and communication technologies IP Internet protocol ISP Internet service provider NGO Non-governmental organisation OHCHR Office of the High Commissioner on Human Rights SADC Southern African Development Community SDG(s) Sustainable Development Goal(s) UDHR Universal Declaration of Human Rights UN United Nations UNESCO United Nations Educational, Scientific and Cultural Organization UNGA United Nations General Assembly UNSR United Nations Special Rapporteur on Freedom of Opinion and Expression 8 Foreword Freedom of expression is a cornerstone human right. It is a fundamental right in itself — the right to seek, receive; and impart all ideas regardless of frontiers by any means, but it is also a right that enables other fundamental rights such as the right to peaceful assembly and the right and opportunity to vote. Indeed, it is difficult for individuals to make informed decisions related to one’s life without societal respect for the right to freedom of expression. As the United Nations’ specialized agency with a specific mandate to promote and protect freedom of expression and its corollaries, press freedom and access to infor- mation, UNESCO seeks to sensitize all relevant actors and in particular those work- ing in justice systems, such as judges, lawyers, and prosecutors, on the importance of guaranteeing these fundamental human rights. Because there is a clear and intimate link between freedom of expression, press free- dom and the safety of journalists, UNESCO also actively works to promote a free and safe environment for media professionals in both conflict and non-conflict situations. According to UNESCO data, 1,010 journalists were killed around the world in the 12 years between 2006 and 2017. The rate of impunity for killings of journalists remains staggeringly high, with fewer than one out of nine cases ultimately resolved with the perpetrators brought to justice. This high level of impunity emboldens other potential perpetrators of these crimes, creating a vicious cycle that can lead to more attacks and that sends a message to society that killing journalists engenders few consequences. To tackle this important issue, the UN Chief Executives Board adopted the UN Plan of Action for the Safety of Journalists and the Issue of Impunity on 12 April 2012. The UN Plan of Action was further recognized by the United Nations General Assembly Res- olution AIRES/68/163, adopted on 18 December 2013. The General Assembly tasked UNESCO with coordinating the UN Plan and works with all concerned actors to trans- late international norms into concrete actions. It is within this context that UNESCO has developed a comprehensive programme to reinforce the knowledge and expertise of members of the judiciary with further train- ing on legal standards related to freedom of expression. Judiciary actors play a crucial role in upholding freedom of expression in all its
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