Excerpts from the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression:
Permissible restrictions and limitations on freedom of expression
81. The Special Rapporteur also wishes to stress that, as provided in paragraph 5 (p) of Human Rights Council resolution 12/16, restrictions on the following aspects of the right to freedom of expression are not permissible:
(i) Discussion of government policies and political debate; reporting on human rights, government activities and corruption in government; engaging in election campaigns, peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups;
(ii) The free flow of information and ideas, including practices such as the banning or closing of publications or other media and the abuse of administrative measures and censorship;
(iii) Access to or use of information and communication technologies, including radio, television and the Internet.
82. With regard to limitations on freedom of expression justified on the basis of the protection of other rights or the reputation of others, the Special Rapporteur reiterates that this justification must not be used to protect the State and its officials from public opinion or criticism. The Special Rapporteur is of the view that no criminal or civil action for defamation should be admissible in respect of a civil servant or the performance of his or her duties. In addition, all desacato laws should be repealed.
83. The Special Rapporteur believes that any attempt to criminalize freedom of expression as a means of limiting or censuring that freedom must be resisted. He therefore encourages all efforts to decriminalize acts considered to be acts of defamation and to make civil liability proceedings the sole form of redress for complaints of damage to reputation.
However, civil penalties for defamation should not be so heavy as to block freedom of
expression and should be designed to restore the reputation harmed, not to compensate the plaintiff or to punish the defendant; in particular, pecuniary awards should be strictly proportionate to the actual harm caused, and the law should give preference to the use of non-pecuniary remedies, including, for example, apology, rectification and clarification.
84. In addition, criminal defamation laws may not be used to protect abstract or subjective notions or concepts, such as the State, national symbols, national identity, cultures, schools of thought, religions, ideologies or political doctrines. This is consistent with the view, sustained by the Special Rapporteur, that international human rights law protects individuals and groups of people, not abstract notions or institutions that are subject to scrutiny, comment or criticism.
1. General considerations concerning freedom of opinion and expression
119. States should take the necessary steps to guarantee the effective exercise of the right to freedom of opinion and expression for all individuals and social sectors, without exception or discrimination of any kind.
120. States should refrain from criminalizing any manifestation of the freedom of expression as a means of limiting or censoring that freedom. Accordingly, any measure of this kind should be abolished, except for the permissible and legitimate restrictions established in international human rights law.
121. States should adopt the legislative and administrative measures necessary to facilitate access to public information and should establish specific mechanisms for that purpose.
122. It is recommended that States establish a legal framework that recognizes and regulates community-based communication within the framework of the 14 principles presented in this report and that a fair balance be struck in terms of frequency allocation among community-based media, commercial media and public-sector or State media.
123. It is recommended that frequency allocation should be overseen and managed by an independent State (public-sector) body.
124. It is recommended that States, the media and financial institutions implement the recommendations set forth in the Colombo Declaration, which are aimed at strengthening the freedom of expression of marginalized sectors of society and their access to media of their own, including electronic media, with a view not only to promoting freedom of expression and democracy but also to combating poverty and meeting the Millennium Development Goals. It is also recommended that States establish a special fund to subsidize access (which requires both connectivity and the necessary equipment) to electronic media for all sectors.
125. It is recommended that States facilitate technology transfer in the field of communications as a means of narrowing the digital and technological divide between the developed world and developing countries and thus contributing to the achievement of the Millennium Development Goals.
126. It is recommended that States respect the principles of pluralism and diversity, which are inherent in freedom of expression, in order to prevent and combat the concentration of media ownership in the hands of large-scale public and private consortia which contravene democratic models.
2. Freedom of expression for groups in need of particular attention and the role of freedom of expression in combating discrimination
127. States should empower women by upgrading their theoretical knowledge and practical skills, improving their access to information technology and promoting their participation in the development of these technologies as a means of fostering and increasing their participation in public affairs and decision-making on issues likely to have a direct bearing on their development.
128. States are urged to prohibit and criminalize the production, distribution, dissemination, importation, exportation, offering, sale and possession of child pornography, which constitute acts of physical and psychological violence, as well as incitement to commit acts of violence against children, which constitutes, in addition, a failure to respect their human dignity.
129. States should take the necessary steps to support the expression of the cultural diversity of indigenous peoples and other minority groups in the public and private media. They should also promote policies on dialogue and education that foster understanding and respect in intercultural exchanges.
130. The Special Rapporteur also recommends that the mass media endeavour to employ a diverse workforce within which all sectors of society are represented and urges the press and mass media to voluntarily establish and adopt codes of professional conduct that help them to achieve this diversity.
131. The Special Rapporteur takes this opportunity to recommend that, in the implementation of anti-terrorism and national security measures, States act with absolute respect for human rights, applying articles 19 and 20 of the Covenant and other related provisions in order to ensure that such measures do not have a disproportionate effect on the exercise of freedom of expression.
3. Protection of journalists and freedom of the press
132. It is recommended that States take all actions necessary to ensure that representatives of the national and international press have access to all facts and to all places, including zones of internal or international armed conflict, while guaranteeing the protection necessary to safeguard their lives and their physical and mental integrity, together with the full exercise of their human rights in accordance with international human rights law and international humanitarian law
133. With regard to the alarming number of journalists who have been killed, kidnapped or threatened, States are reminded of their duty to investigate and prosecute those responsible for planning and perpetrating such acts in order to eliminate the culture of impunity that perpetuates violence.