Seven years have elapsed since the Charlie Hebdo shootings in Paris, France, which resulted in the killing of 12 people outside the offices of the French satirical weekly newspaper. The motive for the terrorist attack, committed by two French citizens, was related to the drawings of Prophet Muhammed (PBUH) by Charlie Hebdo which were considered as offensive and blasphemous.

In the aftermath of the killings, widespread protests were held across different countries in response to the mockery and denigration of Islam’s Holy Prophet. In fact, it is not the first time that Islam’s Holy Prophet has been subject to disdain and ridicule drawings - journalists and satirists in Denmark and the Netherlands have on numerous instances gathered the irk and displeasure of the Muslim world who felt offended and insulted by the mockery made of their Holy Prophet.

Since then, several debates have emerged regarding the modalities of exercising the right of freedom of expression stipulated in Article 19 of the International Covenant on Civil and Political Rights, in the Universal Declaration of Balanced and Inclusive Education, as well as other relevant international and regional human rights instruments, which affirm the right to hold opinions and publicly express them without interference from external parties.

From this standpoint, one can assume that the language of Article 19 entails the right of an opinion-holder to freely express and disseminate whatever opinion he or she considers to be appropriate. But is the right of freedom of expression an absolute right, and should it prevail over other rights and duties that may conflict with an absolute approach to upholding and realising the right of freedom of expression?

For instance, should the dissemination of opinions and viewpoints considered as offensive to one ethnic and/or religious group be tolerated and accepted in societies? Is the government entitled to intervene, and if so, when? What kind of restrictions of freedom of expression can be imposed by government? Or should the right of freedom of expression not be subject to any limitations?

In many countries in Europe, for instance, the denial of the Armenian genocide and the Holocaust may in certain instances result in hefty fines and penalties, and even result in lengthy prison sentences for deniers. The reason for this constraint of freedom of expression is related to addressing the proliferation of hate crimes, injustice, anti-Semitism, and related ethnic and racial discrimination, as well as preserving the social harmony of diverse and inclusive societies that may be theoretically at risk of instability and social disintegration by the proliferation of such viewpoints.

One can also refer to the peculiarities related to the situation of Julian Assange and Edward Snowden who, in the name of freedom of expression and press freedom, face charges and criminal conviction for having leaked confidential information and documents of public interest to the press. In fact, striking a balance between right of freedom of expression as a universal and absolute right and curbing its scope in relevant circumstances is not a straight-forward process.

Owing to my professional capacity, I am not in a position to provide my personal standpoint on this matter. However, I have decided to interview the former UN Independent Expert on the Promotion of a Democratic and Equitable International Order and Professor of International Law, Dr. Alfred de Zayas1, regarding the right of freedom of expression, when it is subject to limitations, whether it constitutes an absolute right, and how it can be better balanced and complemented against other rights and privileges.

Some people think that freedom of expression is no more than the right to go along with the mainstream and to echo whatever we heard last night in the BBC or CNN. Obviously, freedom of expression is far more than a right to echo the corporate media, and also most importantly it entails the right to dissent, the right to question preconceived ideas, and in the process, also the right to be wrong. All progress depends on formulating new hypotheses and testing them. If doctrine is immutable, no one will dare to formulate a hypothesis that departs from orthodox thinking. No one needs a new Inquisition and the burning of non-conformists and heretics.

A democratic society depends on access to all information, including fake news and obnoxious views. A conscientious person has a responsibility to evaluate facts and opinion and arrive at his/her own opinion. Indeed, it is the expression of this opinion which society must protect. What is most necerssary is a plurality of views and interpretations of the facts, so that they can be tested in the ‘marketplace of ideas.

Of course, there are some kinds of expression that can damage the common good and that must be prohibited. Article 20 ICCPR prohibits propaganda for war. Article 20(2) prohibits incitetement to racial or religious violence or hatred. This is not only legal and legitimate – this is common sense. On the other hand, the lawgiver must also be clear in defining what constitutes ‘incitement’.

What are the elements of the crime? Where is the threshold? Does the current media agitation against Russia and China amount to war propaganda, to prohibited ‘Russophobia’ or ‘Sinophobia’? Does the negative media focus on Islam and the media generalization that links Muslims with violence and terrorism amount to incitement to religious hatred and constitute prohibited Islamophobia?

The key issue here is one of proportion, how to evaluate the risk, where to draw the line. While legitimate criticism of Russia, China or Islam must be possible, there must be reasonable limits, as there is, for example, in civil law that prohibits malicious or mendacious defamation of persons. It is the function of lawyers to formulate clear definitions, to draw lines, sort these things out. No one wants to throw the baby out with the bathwater.

A balance can be struck. For instance, article 19 ICCPR does envisage certain legitimate restrictions. ‘The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

  • for respect of the rights or reputations of others;
  • for the protection of national security or of public order (ordre public), or of public health or morals.

The jurisprudence of the Human Rights Committee has thrown light, on the basis of specific cases, on what restrictions are legitimate. Moreover, in its 2011 General Comment Nr. 34 on Article 19, the Committee rejected the imposition of co-called ‘memory laws’. Paragraph 49 states:

Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.

In other words, there is a right to be wrong. It is certainly not the function of lawyers to legislate history. As the famous French Professor Pierre Nora (Académie Française) stated in the Appel de Blois, which many historians and lawyers signed, including myself: ‘Concerned about the retrospective moralization of history and intellectual censure, we call for the mobilization of European historians and for the wisdom of politicians.

History must not be a slave to contemporary politics nor can it be written on the command of competing memories. In a free state, no political authority has the right to define historical truth and to restrain the freedom of the historian with the threat of penal sanctions. We call on historians to marshal their forces within each of their countries and to create structures similar to our own, and, for the time being, to individually sign the present appeal, to put a stop to this movement toward laws aimed at controlling history memory. We ask government authorities to recognize that, while they are responsible for the maintenance of the collective memory, they must not establish, by law and for the past, an official truth whose legal application can carry serious consequences for the profession of history and for intellectual liberty in general.

In a democracy, liberty for history is liberty for all.

An additional threat posed by the criminalization of thought is that public discourse becomes stale, self-censorship sets in, and genuine discourse is driven underground. Government or private-sector censorship via the ‘cancel culture’ practised by Facebook, Twitter, Youtube, Amazon, Wikipedia, etc. undermines democracy and is definitely contrary to Article 19 ICCPR. Moreover, it is not only the person or persons censored whose rights are violated, but the entirety of society, because Article 19 protects not only the right of an individual to express his/her views, but also protects the right of all of society to have access to the views of that person. If A is censored, B’s rights are also violated.

In the spirit of Article 19 ICCPR a Charter of Rights of Whistleblowers should be adopted by the UN Human Rights Council and General Assembly, as I repeatedly proposed in my reports as Independent Expert, media statements and in my 25 Principles of International Order. Society owes both Julian Assange and Edward Snowden a debt of gratitude for uncovering governmental crimes. In a democratic society we all have a right to know what are governments are doing in our name.

1 De Zayas is the co-author of Freedom of opinion and freedom of expression: some reflection on General Comment No. 34 of the UN Human Rights Committee.