it imposes. This second principle in showing necessity is generally applicable to all instances
where states seek to justify limitations on rights. A state limiting the freedom of expression has
a duty to demonstrate convincingly that the measures taken are necessary and proportionate
in pursuing legitimate aims.
23 In this regard, the UNHRC has pronounced that ‘‘the legitimate
objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy,
democratic tenets and human rights.’’
24
The UNHRC has clearly stated that any restrictions must ‘‘not put in jeopardy the right
itself.’’
25 In other words, a total clampdown on freedom of expression—even if imposed in
the name of ensuring the respect of the rights or reputations of others, or protecting national
security, public order, public health, or public morals—would never be deemed justifiable.
Reservations
A final word is warranted before leaving the general subject of limitations. As international law
is based on the consent of sovereign states, it is possible for a state to place reservations on
international treaties it ratifies in some circumstances. These reservations will limit the extent of
the reserving state’s obligations under the relevant treaty. It is beyond the scope of this chapter to undertake a review of such reservations in the context of the ICCPR, but one salient
point is worth noting: A number of states specifically made a reservation to Article 19 to the
effect that they retained the power to regulate radio and television broadcasts. These states
became parties to the ICCPR before mass communication via the Internet emerged. According to the UNHRC, states will not be permitted to extend a specific reservation to provide a
more general exception from the ICCPR rights.
26 Thus, it would be highly unlikely that the
UNHRC would accept that a state’s reservation with regard to radio and television broadcasts
permitted it, by analogy, to regulate the Internet in a similar fashion.
Applying International Law to Filtering
In light of the provisions spelled out above, the vast majority of current filtering practices would
seem to fall short of the requirements of international law since 1) most filtering measures are
not specifically provided by law, and 2) it is unlikely that these measures would meet the
ICCPR necessity test.
Nevertheless, to give some concrete examples of how filtering practices might comply with
certain ICCPR provisions procedurally or substantively, this section refers to some specific
practices by states.
Measures Provided in Law
With respect to ICCPR requirements that any limitations on the freedom of expression be
expressly ‘‘provided in law,’’ a state might establish procedures for making its filtering practices open and transparent. Disclosing that such filtering practices are in effect, according to a
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Mary Rundle and Malcolm Birdling
where states seek to justify limitations on rights. A state limiting the freedom of expression has
a duty to demonstrate convincingly that the measures taken are necessary and proportionate
in pursuing legitimate aims.
23 In this regard, the UNHRC has pronounced that ‘‘the legitimate
objective of safeguarding and indeed strengthening national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy,
democratic tenets and human rights.’’
24
The UNHRC has clearly stated that any restrictions must ‘‘not put in jeopardy the right
itself.’’
25 In other words, a total clampdown on freedom of expression—even if imposed in
the name of ensuring the respect of the rights or reputations of others, or protecting national
security, public order, public health, or public morals—would never be deemed justifiable.
Reservations
A final word is warranted before leaving the general subject of limitations. As international law
is based on the consent of sovereign states, it is possible for a state to place reservations on
international treaties it ratifies in some circumstances. These reservations will limit the extent of
the reserving state’s obligations under the relevant treaty. It is beyond the scope of this chapter to undertake a review of such reservations in the context of the ICCPR, but one salient
point is worth noting: A number of states specifically made a reservation to Article 19 to the
effect that they retained the power to regulate radio and television broadcasts. These states
became parties to the ICCPR before mass communication via the Internet emerged. According to the UNHRC, states will not be permitted to extend a specific reservation to provide a
more general exception from the ICCPR rights.
26 Thus, it would be highly unlikely that the
UNHRC would accept that a state’s reservation with regard to radio and television broadcasts
permitted it, by analogy, to regulate the Internet in a similar fashion.
Applying International Law to Filtering
In light of the provisions spelled out above, the vast majority of current filtering practices would
seem to fall short of the requirements of international law since 1) most filtering measures are
not specifically provided by law, and 2) it is unlikely that these measures would meet the
ICCPR necessity test.
Nevertheless, to give some concrete examples of how filtering practices might comply with
certain ICCPR provisions procedurally or substantively, this section refers to some specific
practices by states.
Measures Provided in Law
With respect to ICCPR requirements that any limitations on the freedom of expression be
expressly ‘‘provided in law,’’ a state might establish procedures for making its filtering practices open and transparent. Disclosing that such filtering practices are in effect, according to a
82
Mary Rundle and Malcolm Birdling