Check Against Delivery s3

Check against delivery

Statement by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue

Fourteenth session of the Human Rights Council Geneva, 3 June 2010 Mr. President, Excellencies, Ladies and Gentlemen,

I am pleased to address the Human Rights Council on issues related to my mandate as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

The report before you today (A/HRC/14/23) builds on my previous report, and focuses on three issues: the right to freedom of opinion and expression of groups in need of particular attention and the role of freedom of expression in combating discrimination; limitations to the right to freedom of expression; and protection of journalists and press freedom. In addition to my thematic report, you will also find a report on communications with Governments (A/HRC/14/23/Add.1), and a tenth anniversary declaration outlining ten key challenges to freedom of expression in the next decade, adopted jointly with three regional rapporteurs holding mandates regarding freedom of expression (A/HRC/14/23/Add.2).

Before highlighting the substantive topics of my report, I would first like to draw your attention to the general principles outlined in my report regarding the right to freedom of opinion and expression.

The Human Rights Council, through resolution 12/16, asserted that the exercise of the right to freedom of opinion and expression is one of the essential foundations of a democratic society, and is instrumental to the development and strengthening of effective democratic systems. The importance of the right for the development and reinforcement of democratic systems lies in the fact that it is closely linked to the rights to freedom of association, assembly, and participation in public affairs. It therefore symbolizes, more than any other right, the indivisibility and interdependence of human rights. As such, the effective enjoyment of the right to freedom of opinion and expression is also an important indicator with respect to the protection of other rights, including economic, social and cultural rights.

Based on article of 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), the right to freedom of opinion and expression consists of three distinct elements: the right to hold opinions without interference, which is an absolute right; the right to seek and to receive information, or access to information; and the right to express and impart information and ideas of all kinds.

With regard to the right of access to information, which is essential in ensuring that members of society are informed and can effectively participate in democratic decision-making processes, I would like to call upon all States to adopt legislation which gives effect to the public’s right to access information, based on the principles outlined in paragraph 32 of my report. Such laws must also be accompanied by an effective and independent mechanism to facilitate the public’s access to information. Additionally, an important aspect of access to information is the access to historical records of past human rights violations. Such access allows victims and societies to exercise their right to truth, bearing in mind that the truth is the first step towards attaining justice and effective remedies.

2 Mr. President, Excellencies, Ladies and Gentlemen,

The ability of individuals to fully exercise their right to freedom of opinion and expression and to access communication tools is fundamental in combating inequality and discrimination. It is therefore particularly important for groups in need of specific attention - such as women, children, persons living in extreme poverty, minorities, and indigenous peoples - to obtain information, assert their rights, and participate in decision-making processes to improve their situation. This in turn facilitates development and enables societies to progress towards the attainment of the Millennium Development Goals (MDGs).

In this regard, I would like to stress the positive obligation of States to facilitate and subsidize access to means of communication, including community-based media and the Internet. To this end, I recommend States to establish a special fund to subsidize access to information and communications technologies and the Internet for all sectors of society.

Mr. President, Excellencies, Ladies and Gentlemen,

The second issue addressed in my report is permissible limitations to the right to freedom of expression. In accordance with resolution 7/36 of the Human Rights Council, my mandate includes reporting on instances in which the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination, as well as formulating recommendations and making suggestions concerning methods of promoting and protecting the right to freedom of opinion and expression in all forms. Accordingly, as a contribution to the consideration of this issue and my mandate, I have compiled a series of existing principles from various public sources that will help determine what constitutes a legitimate limitation of the right to freedom of expression, and what constitutes an “abuse” of the right.

In particular, I would like to reiterate that any restriction or limitation to the right to freedom of expression must be an exception to the rule, and pass the three-part test: (1) it must be provided by law, which is accessible, unambiguous, drawn narrowly and with precision so as to enable individuals to foresee whether a particular action is unlawful; (2) it must be necessary to pursue one of the legitimate aims identified in article 19, paragraph 3 or article 20, paragraph 2 of the ICCPR, or article 29 of the UDHR; and (3) it must be proportionate to the aim that it seeks to achieve, or the least restrictive means possible for protecting that aim, with the State bearing the burden of proof.

In addition, I would like to emphasize the following principles:  any restriction or limitation to the right to freedom of expression must not undermine or jeopardize the essence of the right;  the relationship between the right and the limitation or between the rule and the exception must not be reversed;  laws imposing a limitation must set out the remedy against or mechanisms for challenging the limitation, which must include a prompt, comprehensive and effective judicial review of the validity of the limitation by an independent court or tribunal;  any limitation must be consistent with other rights recognized in the ICCPR and in other international human rights instruments, including the fundamental principles of equality and non-discrimination;

3  if doubt exists as to the interpretation of the scope of the law imposing limitations, the protection of fundamental human rights shall be the prevailing consideration;  a state of emergency may not be used for the sole aim of restricting freedom of expression and preventing criticism of those who hold power; and  limitations already established must be reviewed and their continued relevance analyzed periodically.

With regard to limitations on the right to freedom of expression imposed on the ground of protecting the rights or reputation of others, I would also like to reiterate that defamation laws may not be used to protect abstract or subjective notions or concepts. These include the State, national symbols, national identity, cultures, schools of thought, religions, ideologies, or political doctrines. On this basis, and as expressed jointly by the four mandate holders of freedom of expression in 2008, the concept of “defamation of religions” does not accord with international standards regarding defamation, which refer to the protection of the reputation of individuals, while religions, like all beliefs, cannot be said to have a reputation of their own.

I am deeply aware and concerned about the continuing existence in the world of stereotypes and prejudice against ethnic, racial, linguistic and religious groups, which are often exacerbated by misconceived national security and anti-terrorism policies. However, it is essential that this problem be recognized and countered by developing a Culture of Peace, based on intercultural dialogue and tolerance which promotes respect in intercultural and all social relations. Moreover, as recognized in paragraph 58 of the Outcome Document of the Durban Review Conference, freedom of opinion and expression plays a key role in the fight against racism, racial discrimination, xenophobia and related intolerance worldwide. Thus, it is my belief that the best way to combat discrimination and racism is to promote more open dialogue and exchange of views, rather than to focus excessively on ways to restrict freedom of expression.

The third issue examined in my report is the protection of journalists and freedom of the press. I am deeply concerned that providers of information continue to be targets of threats, assaults and even assassinations.

In particular, I am alarmed that there has been an increase of at least 26 per cent in the killing of journalists in 2009 compared to the previous year. A high percentage of killings for which the motives have been confirmed were connected to investigations of corruption, organized crime and political crime that the journalists in question were conducting at the time. In addition, kidnappings of journalists and other media professionals are a continuing practice which, in 2009, forced around 157 journalists to seek exile in other countries.

I am also alarmed by some of the statistics which indicate that the perpetrators of these offences have enjoyed total impunity in 94 percent of all cases, while the percentage of cases in which even some partial measure of justice has been obtained is minimal. In only 2 percent of the cases have the offences been tried before the competent authorities and the perpetrators and instigators prosecuted.

4 In this regard, I would like to call upon all States, but in particular the Philippines, Iraq, Pakistan, the Russian Federation and Mexico, which account for the greatest number of journalists’ deaths in descending order, to adopt the necessary measures to guarantee the protection and safety of journalists.

I would like to reiterate that in accordance with Security Council resolution 1739 and obligations under international human rights law, States must carry out exhaustive investigations into each case of attacks against journalists and to prosecute those responsible. With regard to the issue of protection of journalists in situations of armed conflict, I look forward to the panel discussion on this topic, which will be held tomorrow.

With regard to country visits, I have recently undertaken a visit to the Republic of Korea from 6 to17 May 2010. I would like to thank the Government once again for inviting me to visit the country. Although the full report of my visit will be presented to the Council during the June session next year, I have outlined in my press statement of 17 May six main areas of concern;1 three of which I would like to highlight briefly.

My overall observation from my twelve-day mission is that the space for freedom of expression in the Republic of Korea has been diminishing since the candlelight demonstrations in May 2008, primarily due to new and more restrictive interpretations and application of existing laws. In particular, defamation remains a criminal offence, and I am concerned about the increasing number of defamation suits that have been filed, including by Government officials or institutions. While the courts in the Republic of Korea have played an important role in upholding the right to freedom of expression in defamation cases, the threat of criminal sanctions creates a chilling effect to the exercise of the right to freedom of expression. I therefore recommend the Government to decriminalize defamation, and to promote a culture of tolerance regarding criticism, which is essential in any democratic society.

Although the Republic of Korea has one of the highest levels of Internet connectivity in the region and in the world, there are also worrying restrictions on the Internet, such as the prohibition of the spread of false information, cyber defamation, or insult, the use of the real- name identification system, and the role of the Korea Communications Standards Commission (KCSC). I am particularly concerned that the KCSC essentially operates as a censorship body, and that that the process of determining what kinds of Internet postings should be deleted or temporarily blocked is arbitrary and opaque.

Finally, fear of aggression and threats to its national security were frequently cited as a major concern for the Republic of Korea. However, this should not be used to limit the enjoyment of the rights and the exercise of freedom of expression by their own population. I hope that I can continue to engage constructively and openly with the Government of the Republic of Korea on these issues that I have already raised.

1 The six issues highlighted in the press statement include: restrictions and regulations of freedom of expression on the Internet, defamation, freedom of assembly, freedom of expression prior to elections, the National Security Act, public broadcasting, the National Human Rights Commission of Korea, and the right to freedom of opinion and expression of public officials. The full statement is available at: http://www2.ohchr.org/english/issues/opinion/index.htm.

5 Finally, with regard to forthcoming missions, I have been invited by the Government of Mexico to undertake a visit in August. I have also been invited by the Government of Israel to visit the country in September, which I have confirmed. I would also like to thank the Government of Italy for extending me an invitation for a visit, and hope to agree on the dates of mutual convenience.

Thank you very much for your attention.