expression, of works of art, etc.; it should not be confined to means of political, cultural or artistic expression.’’
16 Further, the Committee did not agree that different kinds of expression
can be subjected to greater restrictions than others.
However, the rights elaborated in the ICCPR are expressed as being held by natural persons—that is, they pertain to individual human beings rather than explicitly extending as well
to legal, or juridical, persons (e.g., corporations). The UNHRC has avoided any difficulties in
the freedom of expression context by stating that the right is by its nature ‘‘inalienably linked to
the person,’’ and that individuals enjoy freedom of expression with respect to their businesses,
for example, having a right to use the language of their choice. As such, an individual person’s
right to freedom of expression should hold even if the primary purpose of the expression is to
promote a company.
Article 19 also provides that this right is to apply ‘‘regardless of frontiers and through any
media.’’ This express lack of qualification is particularly important as it underscores the fact
that the right extends across a wide variety of media.
17 As such, arguments that the Internet
is somehow different in nature, and immune from scrutiny, should fail.
As a document of some decades’ standing, the ICCPR has seen many changes in the
structure and organization of the mass media, and its machinery has responded accordingly.
The UNHRC has noted that a completely state-controlled media is inconsistent with the right,
as are restrictive licensing regimes for television and radio stations.
18 Given the mediumneutral nature of the right, the ICCPR would also be likely to prohibit a similarly restrictive
system of state registration for Internet publishers—for example, a system requiring video
bloggers to submit to an unduly rigorous licensing regime.
The right to freedom of expression as articulated in these international documents is extremely broad and was intended to be applicable to all types of media—existing now or in
the future. Hence, any state restrictions on the distribution of information via the Internet would
seem to constitute a restriction (although not necessarily a breach) of the right to freedom of
expression under the ICCPR.
Limitations on the Right
The right to freedom of expression as set out in the ICCPR is not absolute, however. The text of
Article 19 states that the exercise of the right carries with it ‘‘special duties and responsibilities’’
and that it ‘‘may therefore be subject to certain restrictions.’’ While critics of the ICCPR may
argue that the exceptions to the right are so broadly drawn as to render the right meaningless,
this characterization is not accurate. The permissible scope of such restrictions is in fact narrow.
Article 20 of the ICCPR spells out the most straightforward cases in which restrictions are
appropriate; indeed, the language even creates a positive obligation on states to restrict expression in relation to war propaganda and advocacy of national, racial, or religious hatred
that constitutes incitement to discrimination, hostility, or violence. States are obliged to prohibit these in their domestic legal systems. In other words, filtering of this form of information
would not only be permitted but arguably required by the ICCPR.
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Mary Rundle and Malcolm Birdling
16 Further, the Committee did not agree that different kinds of expression
can be subjected to greater restrictions than others.
However, the rights elaborated in the ICCPR are expressed as being held by natural persons—that is, they pertain to individual human beings rather than explicitly extending as well
to legal, or juridical, persons (e.g., corporations). The UNHRC has avoided any difficulties in
the freedom of expression context by stating that the right is by its nature ‘‘inalienably linked to
the person,’’ and that individuals enjoy freedom of expression with respect to their businesses,
for example, having a right to use the language of their choice. As such, an individual person’s
right to freedom of expression should hold even if the primary purpose of the expression is to
promote a company.
Article 19 also provides that this right is to apply ‘‘regardless of frontiers and through any
media.’’ This express lack of qualification is particularly important as it underscores the fact
that the right extends across a wide variety of media.
17 As such, arguments that the Internet
is somehow different in nature, and immune from scrutiny, should fail.
As a document of some decades’ standing, the ICCPR has seen many changes in the
structure and organization of the mass media, and its machinery has responded accordingly.
The UNHRC has noted that a completely state-controlled media is inconsistent with the right,
as are restrictive licensing regimes for television and radio stations.
18 Given the mediumneutral nature of the right, the ICCPR would also be likely to prohibit a similarly restrictive
system of state registration for Internet publishers—for example, a system requiring video
bloggers to submit to an unduly rigorous licensing regime.
The right to freedom of expression as articulated in these international documents is extremely broad and was intended to be applicable to all types of media—existing now or in
the future. Hence, any state restrictions on the distribution of information via the Internet would
seem to constitute a restriction (although not necessarily a breach) of the right to freedom of
expression under the ICCPR.
Limitations on the Right
The right to freedom of expression as set out in the ICCPR is not absolute, however. The text of
Article 19 states that the exercise of the right carries with it ‘‘special duties and responsibilities’’
and that it ‘‘may therefore be subject to certain restrictions.’’ While critics of the ICCPR may
argue that the exceptions to the right are so broadly drawn as to render the right meaningless,
this characterization is not accurate. The permissible scope of such restrictions is in fact narrow.
Article 20 of the ICCPR spells out the most straightforward cases in which restrictions are
appropriate; indeed, the language even creates a positive obligation on states to restrict expression in relation to war propaganda and advocacy of national, racial, or religious hatred
that constitutes incitement to discrimination, hostility, or violence. States are obliged to prohibit these in their domestic legal systems. In other words, filtering of this form of information
would not only be permitted but arguably required by the ICCPR.
80
Mary Rundle and Malcolm Birdling