Joint Declaration: Challenges to Freedom of Expression in the next decade

Last updated November 27, 2023

The Twentieth Anniversary Joint Declaration: Challenges to Freedom of Expression in the next decade was published in 2019 by representatives of intergovernmental bodies to protect free media and expression.^[1] Jointly and annually, the United Nations (UN), the Organization for Security and Co-operation in Europe (OSCE), the Organization of American States (OAS) and the African Commission on Human and Peoples' Rights (ACHPR) publish the results of their discussions about a topic. During these discussions, each organization is a representative (or rapporteur) of a specific human right.

During their 2019 discussion of freedom of expression, the UN was the special rapporteur on freedom of opinion and expression. The OSCE was the representative on freedom of the media, the OAS was the special rapporteur on freedom of expression, and the ACHPR was the special rapporteur on freedom of expression and access to information.^[2] They aimed to provide guidance to governments, civil society organizations, legal professionals, journalists and media outlets, academics, and the business sector.^[1]

Protocol

The first part of the declaration consists of a protocol of achievements, apprehensions, and aspirations. The representatives believed that the 20 previous declarations have contributed to the establishment of authoritative standards which address a wide range of issues and challenges, including the importance of freedom of expression to democracy, sustainable development, protecting other rights, and efforts to counter terrorism, propaganda, and incitement to violence.

All parties have expressed concern about increasing violence against, and prosecution of, reporters, activists, and journalists exercising their right to freedom of expression. Although significant contributions from new digital technologies have made expanding global communication easier, leading to the possibility of people everywhere accessing information and ideas and expressing themselves, the representatives acknowledged that there is room for improvement. Not everyone has access to the Internet; disinformation and propaganda spread quickly, enabling arbitrary and unlawful surveillance. The representatives expressed concern about deepening threats to media diversity and independence, including an increased concentration of media ownership and political control and censorship of public media. They stressed that all states must respect the obligations set out in Article 19 of the International Covenant on Civil and Political Rights, primarily by ensuring that any restrictions are necessary and appropriate and enabling independent judicial oversight of conditions. The representatives said that these obligations should be mandatory for private companies, with the same standards regarding human rights.

Challenges to address

Freedom of expression

The authors of the declaration state that immediate action should be guaranteed to protect the safety of journalists and others who are attacked for exercising their right to freedom of expression and impunity for such attacks should be ended.^[3] States should provide media diversity and a voice to marginalized groups. The state should also explore more seriously the economic challenges faced by independent journalists and media outlets, supporting local media and mitigating the negative impacts of online advertising.^[2]

Free, open and inclusive Internet

Freedom of expression requires a digital infrastructure allowing all stakeholders to participate equally. The state should expand initiatives to provide universal, affordable Internet access and recognise Internet use as a human right, respecting and reinforcing network neutrality and avoiding fragmentation.^[2]

Private control as a threat

The declaration urges development, particularly because some companies have too much power over their users and online activities. More oversight, transparency, and accountability mechanisms to address private content rules, however, may be inconsistent with international human rights and interfere with individual of freedom of expression. Human-rights-sensitive solutions for online disinformation and effective rules and systems which prevent concentration of ownership and practices which abuse a dominant market position are suggested.^[2]

Comments

According to David Kaye, former special rapporteur on the promotion and protection of the right to freedom of opinion and expression, "The importance and relevance of these joint declarations have been highlighted by their use in international court decisions relating to freedom of expression."^[4] Center for Law and Democracy (CLD) executive director Toby Mendel said, "The fact that Joint Declarations have been issued continuously for 20 years is a tremendous achievement. This Declaration is special inasmuch as it provides a framework to guide monitoring of future threats to freedom of expression."^[5]

Public opinion

According to Article 10 of the Human Rights Act 1998, freedom of expression is a human right^[6] which includes the freedom to hold opinions and to receive and impart information and ideas without interference from public authority.^[7] The freedoms of speech and expression are not absolute, however; not all expression is protected or equally protected. Article 10 states that to protect the health of the state and its members, a government can act against freedom of expression if it is justified in the eyes of society.^[7] What constitutes freedom of expression tends to be over-determined in the United States and under-determined elsewhere.^[8] This reflects whether concrete sociopolitical needs are relevant to addressing contemporary concerns in understanding the limits of digital-age rights, and states must develop criteria which balance expressive freedoms and other values when they are in conflict.^[9]

The Internet

The joint commission noted that some governments have taken measures to unduly restrict freedom of expression.^[3] On 1 June 2011, the following declaration on freedom of expression was drawn up:

General Principles: The right to freedom of expression applies to the Internet and all other media. Restrictions are only accepted if they comply with recognized international standards. Awareness-raising and education activities for individuals' responsible use of the Internet will also be promoted.
Liability of Intermediaries: Intermediaries providing technical Internet services or the search or transmission of information should not be liable for the content generated by others unless there is an order to do so.
Filtering and Blocking: Obligatory blocking of an entire website or IP address is a very strong measure and only justified if international standards prove it, for example, for the protection of children.
Criminal and Civil Liability: Jurisdiction in disputes relating to Internet content should be limited to the countries with which the cases are actually and factually related, usually because the author was resident there and the content Upload there and/or the content is specific to that country. Individuals may only refer cases to certain courts.
Network Neutrality: In the handling of Internet data and traffic there should be no discrimination based on device, content, author, service or application.
Access to the Internet: Universal access to the Internet should be promoted, as it promotes the realisation of the right to freedom of expression and other rights such as the right to education and health care. There is no justification whatsoever for banning Internet access for whole sections of the population. Universal Internet access for states is therefore mandatory. In this respect, States should establish regulatory mechanisms, which may include, for example, price regulations or licensing agreements. States should also promote awareness of Internet use and its benefits, especially among the poor, children and older people and remote rural populations. Inclusion is also important. Support should therefore be given to introducing specific measures to ensure equal access to the Internet for disabled and disadvantaged persons.^[1]

Related Research Articles

Artistic freedom can be defined as "the freedom to imagine, create and distribute diverse cultural expressions free of governmental censorship, political interference or the pressures of non-state actors." Generally, artistic freedom describes the extent of independence artists obtain to create art freely. Moreover, artistic freedom concerns "the rights of citizens to access artistic expressions and take part in cultural life—and thus [represents] one of the key issues for democracy." The extent of freedom indispensable to create art freely differs regarding the existence or nonexistence of national instruments established to protect, to promote, to control or to censor artists and their creative expressions. This is why universal, regional and national legal provisions have been installed to guarantee the right to freedom of expression in general and of artistic expression in particular. In 2013, Ms Farida Shaheed, United Nations special rapporteur to the Human Rights Council, presented her "Report in the field of cultural rights: The right to freedom of expression and creativity" providing a comprehensive study of the status quo of, and specifically the limitations and challenges to, artistic freedom worldwide. In this study, artistic freedom "was put forward as a basic human right that went beyond the 'right to create' or the 'right to participate in cultural life'." It stresses the range of fundamental freedoms indispensable for artistic expression and creativity, e.g. the freedoms of movement and association. "The State of Artistic Freedom" is an integral report published by arts censorship monitor Freemuse on an annual basis.

Freedom of information is freedom of a person or people to publish and consume information. Access to information is the ability for an individual to seek, receive and impart information effectively. This sometimes includes "scientific, indigenous, and traditional knowledge; freedom of information, building of open knowledge resources, including open Internet and open standards, and open access and availability of data; preservation of digital heritage; respect for cultural and linguistic diversity, such as fostering access to local content in accessible languages; quality education for all, including lifelong and e-learning; diffusion of new media and information literacy and skills, and social inclusion online, including addressing inequalities based on skills, education, gender, age, race, ethnicity, and accessibility by those with disabilities; and the development of connectivity and affordable ICTs, including mobile, the Internet, and broadband infrastructures".

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial body tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of violations of the Charter. This includes investigating human rights violations, creating and approving programs of action towards encouraging human rights, and set up effect communication between them and states to get first hand information on violations of human rights. Although the ACHPR is under a regional government facility, they don't have any actual power and enforcement over laws. This ends up in them drafting up proposals to send up the chain of command to the Assembly of Heads of State and Government and they will act accordingly.

The office of the Special Rapporteur on Freedom of Expression of the Organization of American States (OAS) was established by the Inter-American Commission on Human Rights (IACHR) in 1997 to monitor OAS member states' compliance with the American Convention on Human Rights in the area of freedom of expression.

Digital rights are those human rights and legal rights that allow individuals to access, use, create, and publish digital media or to access and use computers, other electronic devices, and telecommunications networks. The concept is particularly related to the protection and realization of existing rights, such as the right to privacy and freedom of expression, in the context of digital technologies, especially the Internet. The laws of several countries recognize a right to Internet access.

The OSCE Representative on Freedom of the Media functions as a watchdog on media developments in all 57 participating member states of the Organization for Security and Co-operation in Europe (OSCE). He or she provides early warning on violations of freedom of expression and promotes full compliance with OSCE principles and commitments regarding freedom of expression and press freedom.

The right to food, and its variations, is a human right protecting the right of people to feed themselves in dignity, implying that sufficient food is available, that people have the means to access it, and that it adequately meets the individual's dietary needs. The right to food protects the right of all human beings to be free from hunger, food insecurity, and malnutrition. The right to food implies that governments only have an obligation to hand out enough free food to starving recipients to ensure subsistence, it does not imply a universal right to be fed. Also, if people are deprived of access to food for reasons beyond their control, for example, because they are in detention, in times of war or after natural disasters, the right requires the government to provide food directly.

Source protection, sometimes also referred to as source confidentiality or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law. It prohibits authorities, including the courts, from compelling a journalist to reveal the identity of an anonymous source for a story. The right is based on a recognition that without a strong guarantee of anonymity, many would be deterred from coming forward and sharing information of public interests with journalists.

The Access to Information and Protection of Privacy Act (AIPPA) was passed in 2002 by the Zimbabwean Parliament under the majority of the Zimbabwe African National Union – Patriotic Front (ZANU–PF) and Former President Robert Mugabe.

Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recognised as a human right in the Universal Declaration of Human Rights and international human rights law by the United Nations. Many countries have constitutional law that protects free speech. Terms like free speech, freedom of speech, and freedom of expression are used interchangeably in political discourse. However, in a legal sense, the freedom of expression includes any activity of seeking, receiving, and imparting information or ideas, regardless of the medium used.

The right to Internet access, also known as the right to broadband or freedom to connect, is the view that all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights, that states have a responsibility to ensure that Internet access is broadly available, and that states may not unreasonably restrict an individual's access to the Internet.

Dunja Mijatović is a Bosnian human rights expert and activist, serving as the Council of Europe Commissioner for Human Rights. She was elected by the Parliamentary Assembly of the Council of Europe on 24 January 2018 and took up her new post on 1 April 2018.

The International Principles on the Application of Human Rights to Communications Surveillance is a document which attempts to "clarify how international human rights law applies in the current digital environment". Communications surveillance conflicts with a number of international human rights, mainly that of privacy. As a result, communications surveillance may only occur when prescribed by law necessary to achieve legitimate aim, and proportionate to the aim used.

The Centre for Law and Democracy (CLD) is a non-profit organisation based in Halifax, Nova Scotia, Canada. The CLD works worldwide to promote, protect, and develop those human rights that underpin democracy, including the right to information (RTI), freedom of expression, freedom of the press, freedom of association, and freedom of assembly. The CLD regularly drafts and consults on legislation, conducts field research, publishes assessments and guidelines, assists with litigation, and provides training.

Media freedom in the European Union is a fundamental right that applies to all member states of the European Union and its citizens, as defined in the EU Charter of Fundamental Rights as well as the European Convention on Human Rights. Within the EU enlargement process, guaranteeing media freedom is named a "key indicator of a country's readiness to become part of the EU".

Access to public information and freedom of information (FOI) refer to the right to access information held by public bodies also known as "right to know". Access to public information is considered of fundamental importance for the effective functioning of democratic systems, as it enhances governments' and public officials' accountability, boosting people's participation and allowing their informed participation into public life. The fundamental premise of the right to access public information is that the information held by governmental institutions is in principle public and may be concealed only on the basis of legitimate reasons which should be detailed in the law. Access to public information builds on the principle that in a democratic system people should be in the condition of accessing a wide range of information in order to effectively participate in public life as well as on matters affecting them.

The Network Enforcement Act, also known colloquially as the Facebook Act, is a German law that was passed in the Bundestag that officially aims to combat fake news, hate speech and misinformation online.

Human rights applied to encryption are a concept of freedom of expression, where encryption is a technical resource in the implementation of basic human rights.

Online hate speech is a type of speech that takes place online with the purpose of attacking a person or a group based on their race, religion, ethnic origin, sexual orientation, disability, and/or gender. Online hate speech is not easily defined, but can be recognized by the degrading or dehumanizing function it serves.

Safety of journalists is the ability for journalists and media professionals to receive, produce and share information without facing physical or moral threats.

References

1 2 3 Hulin, Adeline (2013). "Joint Declarations" (PDF). OSCE. Retrieved 23 June 2022.
1 2 3 4 "Joint Declaration 2019" (PDF). Retrieved 23 June 2022.
1 2 Beltrà, Guillermo (2019-07-12). "United Nations: Access Now on the joint declaration "Challenges to freedom of expression in the next decade"". Access Now. Retrieved 2022-10-06.
↑ Kaye, David. "Joint Declarations". freedex . Archived from the original on 2 July 2022. Retrieved 24 June 2022.
↑ Mendel, Toby (10 July 2019). "20th Anniversary Joint Declaration by Special Rapporteurs" (PDF). law-democracy . Retrieved 23 June 2022.
↑ Elections and media in digital times. UNESCO Publishing, 2019.
1 2 "Article 10 - Freedom of Expression" . Retrieved 23 June 2022.
↑ Constitutionalising social media. Clara Iglesias Keller, Amélie Heldt, Edoardo Celeste ([First edition] ed.). [London?]. 2022. ISBN 978-1-5099-5373-8. OCLC 1290325221.{{cite book}}: CS1 maint: location missing publisher (link) CS1 maint: others (link)
↑ Tourkochoriti, Ioanna (2021). Freedom of Expression. Cambridge University Press. doi:10.1017/9781009042789. ISBN 9781009042789. S2CID 240267691 . Retrieved 23 June 2022.

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[Hulin-2013-1] 1 2 3 Hulin, Adeline (2013). "Joint Declarations" (PDF). OSCE. Retrieved 23 June 2022.

[Joint_Declaration_2019-2] 1 2 3 4 "Joint Declaration 2019" (PDF). Retrieved 23 June 2022.

[Beltrà-2019-3] 1 2 Beltrà, Guillermo (2019-07-12). "United Nations: Access Now on the joint declaration "Challenges to freedom of expression in the next decade"". Access Now. Retrieved 2022-10-06.

[4] Kaye, David. "Joint Declarations". freedex . Archived from the original on 2 July 2022. Retrieved 24 June 2022.

[5] Mendel, Toby (10 July 2019). "20th Anniversary Joint Declaration by Special Rapporteurs" (PDF). law-democracy . Retrieved 23 June 2022.

[6] Elections and media in digital times. UNESCO Publishing, 2019.

[Article_10-7] 1 2 "Article 10 - Freedom of Expression" . Retrieved 23 June 2022.

[8] Constitutionalising social media. Clara Iglesias Keller, Amélie Heldt, Edoardo Celeste ([First edition] ed.). [London?]. 2022. ISBN 978-1-5099-5373-8. OCLC 1290325221.{{cite book}}: CS1 maint: location missing publisher (link) CS1 maint: others (link)

[9] Tourkochoriti, Ioanna (2021). Freedom of Expression. Cambridge University Press. doi:10.1017/9781009042789. ISBN 9781009042789. S2CID 240267691 . Retrieved 23 June 2022.

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