Another positive obligation to restrict expression appears in Article 17(2), which obliges
states to protect individuals from intentional interference with their honor and reputation.
19
These Articles cover affirmative requirements to restrict freedom of expression. Outside
such cases, it falls to individual states to determine which restrictions they wish to place on
the right. The ICCPR does curb the exercise of this power by states by providing in Article
19(3) that such restrictions must be 1) provided by law and 2) necessary for ensuring the
respect of the rights or reputations of others, or for the protection of national security, public
order, public health, or public morals. It should be emphasized that this is an exhaustive list of
the situations in which restrictions are allowed—there are no other grounds on which limitations on freedom of expression are permissible, and states are not permitted to invent further
grounds. Similarly, a state cannot cite inconsistent domestic laws as a reason for noncompliance with the human rights provisions of the ICCPR.
The requirement that any limitation must have its basis in law means that there must be
some affirmative lawful basis for filtering (whether it be a clearly worded statute, or a similarly
clear judicial decision or series of decisions). Vaguely worded statutes will not suffice, nor will
the vague exercise of administrative discretion. This precision is important as it allows individuals to understand the restrictions to which their expression may be subject.
The requirement that restrictions must be shown as necessary for a legitimate purpose triggers an inquiry into the proportionality between the extent of the interference with freedom of
expression and the importance of the purpose of the restriction. It is not sufficient for a state to
make a bare assertion that its actions are necessary to achieve the purpose.
A review of the situations under which the UNHRC has upheld restrictions on freedom of
expression, as well as general guidance issued by U.N. bodies, reveal a number of principles
that can guide states in determining whether a proposed action meets the ICCPR necessity
test.
First, the application of restrictions is to be narrow. This narrowness requirement is particularly important where justifications for restrictions are offered on the basis of alleged national
security or public order imperatives. The UNHRC has noted that justifications on these
grounds are the most frequently abused by invocation to protect the position of the government of the day, rather than truly to protect citizens’ rights.
20 In the filtering context, if a state
were to block all political Web sites during an election in the name of public order, it is dubious
whether the restrictions would meet the standard of necessity.
Limitations on the freedom of expression in the name of public morals raise similar concerns. The UNHRC initially suggested that states possessed a certain ‘‘margin of appreciation’’ with respect to what was necessary to protect ‘‘public morals’’ in any given
jurisdiction.
21 However, the concept of such a margin was expressly rejected by the Committee in a subsequent case concerning other rights.
22 This would tend to suggest that states
cannot rely on such a margin when considering their obligations under the ICCPR.
Second, the necessity of restrictions must be convincingly established by the state. In addition to narrowly tailoring exceptions, a state must provide adequate justification for restrictions
Filtering and the International System
81
states to protect individuals from intentional interference with their honor and reputation.
19
These Articles cover affirmative requirements to restrict freedom of expression. Outside
such cases, it falls to individual states to determine which restrictions they wish to place on
the right. The ICCPR does curb the exercise of this power by states by providing in Article
19(3) that such restrictions must be 1) provided by law and 2) necessary for ensuring the
respect of the rights or reputations of others, or for the protection of national security, public
order, public health, or public morals. It should be emphasized that this is an exhaustive list of
the situations in which restrictions are allowed—there are no other grounds on which limitations on freedom of expression are permissible, and states are not permitted to invent further
grounds. Similarly, a state cannot cite inconsistent domestic laws as a reason for noncompliance with the human rights provisions of the ICCPR.
The requirement that any limitation must have its basis in law means that there must be
some affirmative lawful basis for filtering (whether it be a clearly worded statute, or a similarly
clear judicial decision or series of decisions). Vaguely worded statutes will not suffice, nor will
the vague exercise of administrative discretion. This precision is important as it allows individuals to understand the restrictions to which their expression may be subject.
The requirement that restrictions must be shown as necessary for a legitimate purpose triggers an inquiry into the proportionality between the extent of the interference with freedom of
expression and the importance of the purpose of the restriction. It is not sufficient for a state to
make a bare assertion that its actions are necessary to achieve the purpose.
A review of the situations under which the UNHRC has upheld restrictions on freedom of
expression, as well as general guidance issued by U.N. bodies, reveal a number of principles
that can guide states in determining whether a proposed action meets the ICCPR necessity
test.
First, the application of restrictions is to be narrow. This narrowness requirement is particularly important where justifications for restrictions are offered on the basis of alleged national
security or public order imperatives. The UNHRC has noted that justifications on these
grounds are the most frequently abused by invocation to protect the position of the government of the day, rather than truly to protect citizens’ rights.
20 In the filtering context, if a state
were to block all political Web sites during an election in the name of public order, it is dubious
whether the restrictions would meet the standard of necessity.
Limitations on the freedom of expression in the name of public morals raise similar concerns. The UNHRC initially suggested that states possessed a certain ‘‘margin of appreciation’’ with respect to what was necessary to protect ‘‘public morals’’ in any given
jurisdiction.
21 However, the concept of such a margin was expressly rejected by the Committee in a subsequent case concerning other rights.
22 This would tend to suggest that states
cannot rely on such a margin when considering their obligations under the ICCPR.
Second, the necessity of restrictions must be convincingly established by the state. In addition to narrowly tailoring exceptions, a state must provide adequate justification for restrictions
Filtering and the International System
81