Censorship Eleni Polymenopoulou Content type: Encyclopedia entries Product: Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL] Article last updated: September 2018 Subject(s): Bill of rights — Censorship — Freedom of expression — Freedom of the press — Economic, social, and cultural rights General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum. Managing Editor: Ana Harvey From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 September 2021 A. Nature and Scope of Censorship 1. Censorship is the most serious interference with → freedom of expression. It may amount to the seizure and confiscation of cultural and intellectual products; the prohibition of screenings, exhibitions, and other public events; as well as the forceful closure of websites and other media platforms (see also → freedom of the press; → right to access to the media; → regulation of the media). Censorship is usually imposed on specific outlets of intellectual, cultural, and artistic production of a state (including newspapers, televisions, and the web) and in extreme cases it may amount to absolute bans of a specific form of expression. As pointed out by Lord Bridge in his dissenting opinion in the Spycatcher case, it is ‘the indispensable tool to regulate what the public may and what they may not know’ (Spycatcher (1987) (UK); Observer (1991) 50 (ECtHR)). 1. Definition and Core Meaning 2. The understanding of censorship is generally twofold. Stricto sensu censorship refers to the state’s power to ‘suppress in advance of publication’ (Beman 365; Kommers and Miller 375) as opposed to subsequent imposition of liability and punishment. It involves the seizure, confiscation, or destruction of material prior to circulation, with the aim of preventing information from being disseminated. In this sense, censorship is equivalent to the imposition of prior restraints, ie ‘any attempt by the government—a law passed by the legislature, an order by a judge, any effort by an executive or regulatory agency—to prevent someone from publishing’ (Moore et al 160). 3. Largo sensu censorship is also a generic notion that encompasses all situations where the free flow of information is unduly inhibited. As such it involves all types of stringent restrictions to freedom of speech, including attempts by governmental authorities to ‘limit, directly or indirectly, the information and variety of opinions available to the public’ (Fiss 1218) and ‘suppress opinions of which they disapprove’ (Crowcroft and Cannon 1). This allows for a very broad understanding of censorship, both for the ‘victim’ and the ‘censor’. 4. From an historical/anthropological perspective, ‘there have been trends to expand the ambit of ‘censorship’ to encompass a growing share of practices and structures that shape the form and content of communication’ (Bunn 26) as well as ‘to understand [it] as an autonomous phenomenon, which operates everywhere in the same way, no matter what the context’ (Darnton 228). 2. Delineation of Overlapping Concepts 5. Because of its primary meaning as ‘prior restraint’, censorship is sometimes referred to as ‘prior censorship’. This is the case with Article 13 paragraph 2 of the → American Convention on Human Rights (1969) (‘ACHR’), which is the only regional instrument expressly prohibiting censorship, differentiating between ‘prior censorship’ and subsequent imposition of liability. An explicit exception to this prohibition is made in favour of public morality and the protection of childhood in the case of public entertainments (Art. 13 para. 4 ACHR). 6. In its broader sense, censorship is conflated with common restrictions to freedom of expression, differing only in broadness and gravity: restrictions that constitute censorship therefore are usually ‘overbroad’ and take the form of criminal punishment or disproportionate fines. In both situations, censorship has a chilling effect on the right to freedom of expression, violating the right of the public to receive information and ideas (Compulsory Membership (1985) (IACtHR) 30), and discouraging both investigatory journalism and the expression of criticism (Stoll (2006) (ECtHR) 153; Castells (ECtHR) (1992) 48). The → Supreme Court of the United States had the opportunity to elaborate on this point in the early 1930s in the leading case of Near, decided in 1931 and concerning From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 September 2021 dissemination of ‘scandalous and defamatory’ accusations of the Minnesota police and other public officials by the Minneapolis paper Saturday Press. The Court largely referred to the English philosopher Blackstone, affirming that, contrary to actions for libel, prior restraint imposed by virtue of a statute is an infringement of free speech (Near (1931) (US); Moore et al 166). 7. In the European context, the → European Court of Human Rights (ECtHR) has several times reiterated the importance of freedom of expression in democratic societies, the role of the press as a ‘watchdog’, and the right of the public to be informed (Sunday Times (ECtHR) (1979) 25), and highlighted that ‘prior restraints on the activities of journalists call for the most careful scrutiny on its part and are justified only in exceptional circumstances’ (Observer 60; Cumpănă (2004) 128). 8. Self-censorship, although falling a priori outside the scope of judicial scrutiny, is the primary by-product of censorship and may be the result of such stringent laws and punishments. This is defined as ‘the exercise of control over what one says and does, especially to avoid castigation’ (Oxford Living Dictionaries). Laws on the authority of the judiciary, such as the English law on the ‘contempt of court’ that give the authorities discretion to grant the plaintiffs ‘interlocutory [ie temporary] injunctions’ (Sunday Times; Observer) may be tantamount to self-censorship, including in matters of serious public concern (Observer—Judge Morenilla partly dissenting para. 9). 3. Relevance of International Standards to Constitutional Practice 9. Censorship, and its consequences on civil liberties, is a matter of concern not only for national constitutions but also for international human rights law. The → International Covenant on Civil and Political Rights (1966) (‘ICCPR’) does not contain any express prohibitions of censorship or prior restraints. It is deduced however that the latter constitute a breach of the right to ‘hold opinions without interference’ (Art. 19 para. 1) and ‘the [collective] freedom to seek, receive and impart information and ideas’ (Art. 19 para. 2). In addition, the United Nations Human Rights Committee (‘HRComm’) and the → Committee on Economic, Social and Cultural Rights (CESCR) have been proactive in clarifying that ‘the free communication of information and ideas about public and political issues . implies [that] a free press and other media are able to comment on public issues without censorship or restraint and to inform public opinion’ (HRComm (2011) para. 13), and that the freedom ‘to create, individually, in association with others, or within a community or group . implies that states parties must abolish censorship of cultural activities in the arts and other forms of expression, if any’ (Committee on Economic, Social and Cultural Rights (CESCR) (2009) para. 48). 10. Article 20 of the ICCPR prohibits → hate speech and → propaganda of war, while Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination prohibits ‘all dissemination of ideas based on racial superiority or hatred’ as well as any ‘incitement to racial discrimination’ and ‘all acts of violence or incitement to such acts’, imposing upon states an obligation to declare these offences punishable by law. Subsequently, several states have adopted laws that incorporate these international obligations into domestic legislation. In the United Kingdom (‘UK’), for example, it is an offence to stir hatred on either racial or religious grounds by means of publications (as well as of theatrical performances and broadcasting), while a police officer ‘may arrest without warrant anyone he reasonably suspects is committing [this offence]’ and courts have the power to order forfeiture of any relevant written material or recording (Racial and Religious From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 28 September 2021 Hatred Act 2006, Sections 29A-I (UK), as further explained in the Venice Commission Report 308). 4. Censorship Practices 11. A spectrum of censorship practices exists. Most commonly, this spectrum involves the imposition of prior restraints by law (including emergency counter-terrorism legislation that impose blanket limitations on the media; → types and effects of emergency) or judicial orders. In extreme cases, the authors of the offence may be criminally punished, imprisoned, and/or subject to physical violence. 12. Censorship may be equally exercised by official classification committees or other public bodies that have the constitutional power to control freedom of information, the media, and the arts. Examples include the British Board of Film Classification (created by the British Cinematography Act in 1909) and the French Commission de Classification that are typically mandated to control the information and entertainment available to the public, primarily in the view of protecting