The right to FOE1 is not absolute and may be subject to reasonable restrictions under

international law. The restrictions must be prescribed by law (i), pursues a legitimate aim (ii)
and is necessary in a democratic society (iii). The restriction on FOE enshrined in SIA fulfils
the principles and requirements that have been endorsed by the UNHRC, the IACtHR, the
ECtHR, AHRLR and the ACommHPR.

I. THE REQUIREMENT OF ‘PRESCRIBED BY LAW’

Any restriction must be both formally and materially prescribed by law. A restriction is
generally prescribed by law if it has a basis in domestic law and is adequately accessible
(i), and sufficiently precise, therefore foreseeable (ii).

The SIA is sufficiently precise, therefore foreseeable

A law is foreseeable if it is formulated with sufficient precision to allow a citizen to regulate

his conduct and foresee the resulting consequences. 1 Therefore, precision of the law implies
foreseeability.2 However, the ECtHR clarified that norms ‘ on’t have to be foreseeable with
an absolute certainty’3, and that it ‘may still satisfy the requirement of foreseeability even if
the person concerned has to take appropriate legal advice to assess … the consequences
which a given action may entail’4.Furthermore, the level of required precision is determined
by the circumstances, depending on the content of the law and to whom it is directed. 5

They have also looked at whether there was a right to appeal from the act, as it acts as an
important safeguard.6

II. THE PROSECUTION PURSUES A LEGITIMATE AIM

Restrictions may be justified in the interests of the protection of public order and general
welfare.7 This ground for restriction was confirmed in a number of cases.8 Public order can be
1
Muller v Switzerland, App no 10737/84 (ECtHR, 24 May 1988), para 29.
2
Stephen Kabera Karanja, ‘Transparency and Proportionality in the Schengen Information System and Border
ControlCo-operation’ (2008), p. 221.
3
RTBF v Belgium App no 50084/06, (ECtHR, 29 March 2011), para 103-104; Kindt, Els J. ‘Privacy and Data
Protection Issues of Biometric Applications: A Comparative Legal Analysis’ (2013).
4
Lindon, Otchakovsky-Laurens and July v France App nos 21279/02 and 36448/02, (ECtHR, 22 October 2007)
para 41.
5
Metropolitan Church of Bessarabia and Others v Moldova App no 45701/99 306 (ECtHR 13 December 2001),
para 109.
6
Malcolm Ross v Canada, Communication no 736/1997, UN Doc. CCPR/C/70/D/736/1997 (2000) para 11.4;
Uzun v Germany App no 35623/05 (ECtHR, 2 September 2010) para 72; Gurtekin v Cyprus App nos 60441/13,
68206/13, 68667/13 (ECtHR, 11 March 2014) para 28.
7
UDHR (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) article 29(2); ICCPR (adopted 16
December.
8
X v Austria App no 8170/78 (ECtHR, 13 December 1979); X v United Kingdom App no 8231/78 (ECtHR, 5
described as what is ‘in essential interest of the State or the community’9 or as ‘the conditions
that assure the normal and harmonious functioning of institutions based on a coherent
system of values and principles’. 10However, the boundaries of public order cannot be
precisely defined and may vary according to the time, place and circumstances.11

They have looked at whether the need was pressing and substantial.12

A legitimate aim is also to curb actions which incite violence.13

III. THE PROSECUTION IS NECESSARY IN A DEMOCRATIC SOCIETY

The restrictions imposed by SIA are necessary in a democratic society as they are
proportional (i), and satisfy ‘pressing social need’ requirement (ii).14

1. Restrictions are proportional to the pursuance of the aim

When a State makes any restrictions on FOE, it must take only such measures that are
proportionate to the pursuance of legitimate aims. The HRC stated that the restriction ‘must
be the least intrusive measure to achieve the intended legitimate objective and the specific
interference in any particular instance must be directly related and proportionate to the need
on which they are predicated’.15

Some of them have also looked at:

Proportionality requires that states place no greater limitations on rights than necessary

November 1981); X v United Kingdom App no 5442/72 (ECtHR, 3 October 1975); X v The Federal Republic of
Germany App no 1860/63 (ECtHR, 30 March 1966).

9
Kindt, Els J., ‘Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis’,
(2013) para 324.

10
UNESCO, ‘Freedom of Expression ant Public Order Training manual’ (2015) p 33.
11
HKSAR v Ng Kung Siu, 2 H.K.C.F.A.R., Hong Kong (CFA, 15 December 1999), para 459-460.

12
R. v Oakes, The Supreme Court of Canada 1986 1 SCR 103 paras 15, 48, 54, 59.
13
HRC, ‘General Comment No 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc
CCPR/C/GC/34 para 31.
14
Lingens v Austria App no 9815/82 (ECtHR,8 July 1986), paras. 39-40 (ECtHR); Handyside v United
Kingdom App
no 5493/72 (ECtHR, 7 December 1976) para 48; CoE ‘A guide to the implementation of Article 10 of the
European Convention on Human Rights’ by Monica Macovei (2004) 10 August 2011; HRC, ‘General Comment
No 34’ in ‘Article 19: Freedoms of Opinion and Expression’ (2011) UN Doc CCPR/C/GC/3para 31.
15
HRC, ‘General Comment No 22’ on ‘Freedom of Thought, Conscience and Religion (Article 18)’ (30 July
1993).
to achieve the legitimate aim.16 The nature and severity of the punishment are relevant.17 In
examining the proportionality of Omeria’s actions, the doctrine of margin of appreciation is
inapplicable.18 This is because the doctrine ‘undermines the protection of human rights
according to common standards’, thus ‘betray[ing] the universality of human rights’.19

2. Interference satisfies ‘pressing social need’ requirement

The ECtHR in S. and Marper v UK35 case left a wide MOA to States in assessing whether
pressing social need exists as they can better evaluate the necessity, suitability and overall
reasonableness of a limitation on fundamental rights.

Following the ECtHR judgement in News Verlags GmbH v Austria,36 the pressing social
need has to be determined with consideration of the general context. Furthermore, the ECtHR
in Klass stated that, ‘some compromise between the requirements for defending democratic
society and individual rights is inherent in the system of the Convention’.

Additionally, restriction passes the ‘clear and present danger’ test, which was developed by
the US Supreme Court in order to determine when inflammatory speech intending to
advocate illegal action can be restricted.39 The standard developed determined that speech
advocating the use of force or crime could only be proscribed where two conditions were
satisfied: (1) the advocacy is ‘directed to inciting or producing imminent lawless action,’ and
(2) the advocacy is ‘likely to incite or produce such action’.

Some of them have also looked at the following under this heading:
Excessive criminalisation of mere criticism results in a chilling effect on public debate
and detracts from the development of a tolerant, pluralist, and democratic society.20 Hence, a
16
Malcolm Ross (n 8) para 11.6; UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection
of Human Rights and Fundamental Freedoms While Countering Terrorism’ (28 December 2009) UN Doc
A/HRC/13/37 para 17.

17
Leroy v France App no 36109/03 (ECtHR, 2 October 2008) (‘Leroy’) para 47; Balsyte-Lideikiene v Lithuania
App no 72596/01 (ECtHR, 4 December 2008) (‘Balsyte-Lideikiene’) paras 83–85; Perincek (n 12) para 272.
18
Ilmari Länsman v Finland UN Doc CCPR/C/52/D/511/1992 (HRC, 14 October 1993) para 9.4; General
Comment 34 (n 3) para 36; Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political
Rights: Cases, Materials and Commentary (OUP 2013) 625.

19
Cora Feingold, ‘The Doctrine of Margin of Appreciation and the European Convention on Human Rights’
(1977) 53 Notre Dame Law Review 90, 95; Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and
Universal
Standards’ (1999) 31 International Law and Politics 843, 844; Trevor Allan, ‘Human Rights and Judicial
Review;
A Critique of “Due Defence”’ (2006) 65(3) Cambridge Law Journal 671, 675; Andrew Legg, The Margin of
Appreciation in International Human Rights Law (OUP 2012) 1.
20
UNHRC, ‘Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression’ (16 May 2011) UN Doc A/HRC/17/27 (‘UNHRC May 2011 Report’) paras 26, 28;
UNHRC, ‘Report of the Special Rapporteur in the Field of Cultural Rights’ (14 March 2013) UN Doc
A/HRC/23/34 (‘UNHRC March 2013 Report’) para 89.
distinction must be drawn between prohibited hate speech and legitimate expression.21
The UN Rabat Plan provides a framework for drawing the above distinction.22 The
factors to consider include: the intention of the speaker; the content of the speech; the
context; the likelihood of hatred, discrimination, or violence occurring; and the medium
used.23This framework has been endorsed by the UNHRC.24

Determining a pressing social need requires a fair balance between the general and individual
interests at stake. In the present case, a balance must be made between the freedom of
expression of an individual and the public figures right to privacy and attacks upon their
reputation.

21
UNHRC May 2011 Report (n 36) paras 33–34; UNHRC January 2015 Report (n 8) para 59.
22
UNHRC, ‘Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that
Constitutes Incitement to Discrimination, Hostility or Violence’ (2012)
<http://www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.pdf> (‘UNHRC Rabat
Plan’) accessed 17 January 2016. See also International Justice Resource Centre, ‘UN launches the Rabat Plan
of
Action’ (25 February 2013) <http://www.ijrcenter.org/2013/02/25/un-launches-the-rabat-plan-of-action/>
accessed 17 January 2016; UNHRC March 2013 Report (n 36) para 28; UNHRC January 2015 Report (n 8) para
48.
23
UNHRC Rabat Plan (n 38). See also UN Committee on the Elimination of Racial Discrimination, ‘General
Recommendation no 35 Combating Racist Hate Speech’ (26 September 2013) UN Doc CERD/C/GC/35 para
15; UNHRC, ‘Report of the Special Rapporteur on Freedom of Religion or Belief’ (26 December 2013) UN
Doc A/HRC/25/58 para 58.
24
International Justice Resource Centre, ‘UN launches the Rabat Plan of Action’ (n 38); UNHRC March 2013
Report (n 36) para 28; UNHRC January 2015 Report (n 8) para 48.