Law 9780199231690 E830

Information and Communication,
Freedom of, International

Protection
Peter Malanczuk
Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: April 2011
Subject(s):
Access to information — Margin of appreciation — Media, freedom
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: NALSAR UNIVERSITY OF LAW; date: 04 March 2024
A. Historical Evolution of Legal Rules
1 The development of international rules on freedom of information and communication
has followed the communication revolution and the respective technological development.
The use of the print media was supplemented by international radio broadcasting, satellite
direct television broadcasting, → remote sensing by satellites, transborder flows of
computerized data, and the emergence of the → Internet, coupled with mobile phones and
new methods of mass microblogging. The rapid development of modern information and
communication technology is the backbone of the process of economic globalization that
accelerated after the dissolution of the Soviet Union.
1. Developments before World War II

2 In classical international law the transfrontier flow of information was of no essential
concern to the existence of States. National laws on → aliens and commerce sufficed to
control travellers and the influx of printed matter. Neither the telegraph, nor even the
wireless, fundamentally altered the situation. The Paris Convention of 17 May 1865
reserved parties the right to prevent the transmission of telegrams appearing to endanger
State security, the → ordre public (public policy), or to be contra bonos mores. States
agreed upon necessary international technical regulations and they established competent
administrative unions but they did not create specific rules on the admissible content of
communications. In actual practice the transborder flow of information remained relatively
free.
3 After World War I international short wave radio broadcasting began to be employed for
→ propaganda, first by the Soviet Union, then by other totalitarian regimes, and from 1937
also by democracies. Receiving States often protested against such broadcasts or reacted
by prohibiting their reception, limiting the frequency bands of receiving sets, or even
seizing the sets. Radio jamming was first used by Austria to interfere with the transmission
of Nazi propaganda programmes from Germany.
4 The first attempts to regulate the content of international broadcasting (→ Broadcasting,

International Regulation) were made in the 1930s. The South American Agreement on
Radiocommunications of 10 April 1935 declared illegal ‘emissions likely to interfere with
good international relations and to affect the national feelings of other peoples’ (Art. 7). The
International Convention Concerning the Use of Broadcasting in the Course of Peace of 23
September 1936 was concluded under the auspices of the → League of Nations. It aimed at
preventing transmissions disturbing international understanding, incitement to war, false
information, and at promoting the dissemination of accurate news in times of crisis. Of the
37 States which discussed the draft, only 22 signed and 13 ratified the Convention. It
remained ineffective.
2. Developments since World War II

5 Against the background of the experience prior to and during World War II with the use
of the press and radio in Europe, Western States pressed for the recognition of the principle
of freedom of information within the framework of the UN. In 1945 the constitution of the
→ United Nations Educational, Scientific and Cultural Organization (UNESCO) laid down as
a major objective the promotion of the free flow of information between peoples and States.
At its first session, the UN General Assembly, in Resolution 59 (I) of 14 December 1946,
stated emphatically: ‘Freedom of information is a fundamental human right and is the
touch-stone of all the freedoms to which the United Nations is consecrated’.
6 The 1948 UN Conference on Freedom of Information, convened at the initiative of, in
particular, the US, the UK, and France, attempted to reconcile ideas set out in UN General
Assembly Resolutions 59 (I) and 110 (II) of 3 November 1947, condemning all forms of
propaganda involving a threat to the peace, and 127 (II) of 15 November 1947, inviting
States to consider national measures to combat, within the limits of their constitutions, the
diffusion of internationally harmful, false, or distorted reports. The conference prepared
three draft conventions on the gathering and international transmission of news, on an
international right of correction, and on freedom of information. It also adopted 43
resolutions on various issues concerning the collection and dissemination of information. All
the decisions were referred to the UN Economic and Social Council (‘ECOSOC’) for further
action.
7 Art. 19 → Universal Declaration of Human Rights (1948) (‘UDHR’) provides:
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.
8 This was a starting point for specific formulations of those freedoms in all subsequent
human rights treaties. Between 1949 and 1954 the General Assembly also adopted a
number of resolutions on various aspects of freedom of information.
9 However, with the advent of the Cold War, Western democracies upheld, in various
international arenas, the principle of free flow of information, against which Socialist States
invoked the principles of → sovereignty and non-intervention, particularly with a view to
Western radio broadcasting (eg Radio Liberty, Radio Free Europe, the BBC, Voice of
America, and Deutsche Welle).
10 While until the late 1960s UNESCO had concentrated on improving the technical
capabilities of Member States through programmes to develop modern communication
infrastructures, in the 1970s, in response to Third World demands, its emphasis began to
shift to the content of information. Fearing that the advent of the ‘information age’ might
increase the existing communication and information disparities between North and South,
developing countries, encouraged by Socialist States, in the 1970s raised the issue of a
‘New World Information and Communication Order’. This concept was presented as an
integral and essential part of the controversial demand for a → New International Economic
Order (NIEO) and added a new North-South dimension to the dispute on free flow of
information versus State sovereignty. It later fell into disarray. From 1989 onwards,
UNESCO adopted a new communication strategy to encourage the free flow of information,
without any obstacle to freedom of expression, and to strengthen communication capacities,
particularly in developing countries.
11 After the fall of the Soviet Empire and the advance of democracy in many parts of the
world, the US government no longer saw a pressing need to invest extensive public
resources to ensure ‘getting America’s message out’ internationally. This was largely left to
the private sector. However, private Western media, such as CNN, that had been dominating
the coverage of global news, lost their monopoly when competitors like Al Jazeera based in
Qatar, China’s CCTV, and Russia’s RT emerged.
12 This development has caused concern in the US and drawn attention to the need to give
more support to the US Broadcasting Board of Governors (‘BBG’), an organization that
manages the US government-led international broadcasting (including Voice of America). In
2010, while soliciting more funding for his agency, the BBG chairman Walter Isaacson said:
‘We can’t allow ourselves to be out-communicated by our enemies’. In March 2011, in a
Senate hearing on the State Department budget, Secretary of State Hillary Clinton also
noted:
We are in an information war and we are losing that war. Al Jazeera is winning, the
Chinese have opened a global multi-language television network, the Russians have
opened up an English-language network. I’ve seen it in a few countries, and it is
quite instructive.
B. Current Legal Situation

1. Freedom of Broadcasting and Jamming
(a) General
13 Freedom of broadcasting was established in customary international law by State
practice in the inter-war period. When States protested against foreign programmes, they
did not object to the broadcasting as such, but rather to specific contents. Receiving States
were usually also broadcasting to other countries. Furthermore, conventions on the
regulation of certain content of radio communications, such as those concluded in 1935 and
1936, only make sense under the premise that, in principle, States regarded international
broadcasting as permitted. This development was a consequence of the physical fact that
ether waves, whether intended for foreign reception or not, do not stop at borders. Unlike
→ airspace, the ether does not belong to the territory of States because it cannot be
controlled. International law, therefore, rejected theories which suggested application of
the doctrine of territorial sovereignty to the ether and its use.
14 Freedom of broadcasting means that every State is entitled, in principle, to transmit

radio signals across frontiers without prior consent of the affected States provided it
respects the relevant international regulations on telecommunications
(→ Telecommunications, International Regulation). The latter are solely concerned with the
distribution of frequencies and the avoidance of harmful interference in order to establish
the technical requirements for the proper functioning of communications. They do not
generally prohibit broadcasting to foreign States. There are special rules, however, dealing
with → pirate broadcasting, such as the European Agreement for the Prevention of
Broadcasts Transmitted outside National Territories of 22 January 1965 or Art. 109 UN
Convention on the Law of the Sea of 10 December 1982 concerned with unauthorized
broadcasting from the → high seas.
15 However, customary international law also recognizes the corresponding right of

affected States to interfere with the reception of foreign broadcasts by radio jamming,
provided the technical effects remain restricted to their territory. The customary right to
jamming is a lawful act of sovereignty and not, as sometimes described, of → self-defence.
But it can be excluded by a treaty requirement guaranteeing freedom of information. The
condemnation of jamming by various UN organs, however, is in itself not law creative. It is
controversial whether a general prohibition of jamming can be deduced from Art. 35
International Telecommunication Convention of 6 November 1982 (→ International
Telecommunications Union (ITU)). The provision stipulates that all stations, whatever their
purpose, must be established and operated in such a manner as not to cause harmful
interference to the radio services or communications of other States. It is also controversial
whether the customary rules on freedom of broadcasting which emerged with a view to
terrestrial radio broadcasting—leaving receiving States the expensive, though technically
available option of jamming—can be applied to the new technological development of direct
television broadcasting satellites (→ Satellite Broadcasting; → Geostationary Orbit). On the
regional level in Europe, 1989 European Convention on Transfrontier Television
Broadcasting, as amended by a 1998 Protocol, aims at ensuring the free flow of information.
16 While radio jamming was frequently used during the Cold War by the Soviet Bloc
against broadcasts by the BBC, the Voice of America, Radio Liberty, and Radio Free Europe,
it seems that currently not many countries still make use of the technique (Addis). This may
be partly attributed to the emergence of alternative delivery options via satellite
broadcasting and the Internet. In the case of developing countries, jamming powerful
foreign transmitters may often simply not be within their financial and technological
capacity. However, it appears that US international broadcasting still faces jamming from
China, Iran, Cuba, and Belarus. A US Senate report of 15 February 2011 mentions that
China ‘routinely jams Short Wave radio transmissions of Voice of America and Radio Free
Asia in Mandarin, Cantonese, Uyghur and Tibetan beamed in from locations outside of
China’ (Executive Summary 4). Moreover, in March 2011, the Libyan government, when
using military force to crush the uprising of a part of Libya’s population, was reported to
have used jamming to block Arabic language television programmes critical of Colonel
Gaddafi’s regime, such as al-Jazeera and al-Arabiya (Financial Times [14 March 2011] 4).
(b) Direct Television Satellite Broadcasting

17 The advent of direct broadcasting by satellite (‘DBS’) in the 1970s, because of the
stronger impact of television as compared with radio broadcasting, caused concern with
respect to transnational transmissions (→ Satellite Broadcasting). One of the issues was
whether the new possibility that individuals could directly receive foreign satellite television
programmes (without effective means of the receiving States to use jamming) should be
treated as something completely different, barring the application of the traditional
customary international rules governing terrestrial radio and television broadcasting. In
1972 the UN General Assembly decided (with only the US objecting) that DBS should be
regulated by treaties and that principles were required to protect States against external
interference (UNGA Res 2916 [XXVII] of 9 November 1972).
18 On the global level, while the more technical allocation of satellite orbits and radio
frequencies for DBS was settled within the framework of the ITU, the political issues were
debated primarily by UNESCO and by the UN Committee for the Peaceful Uses of Outer
Space (‘COPUOS’). A 1972 UNESCO Declaration of Guiding Principles on the Use of
Satellite Broadcasting for the Free Flow of Information, the Spread of Education and
Greater Cultural Exchange recognized the principle of the free flow of information. But it
also laid down the need for prior agreement between the States involved if television
broadcasting crosses borders. The Declaration was not binding.
19 The controversial debate on ‘prior consent’ in COPUOS led to the adoption in 1982 by
the UN General Assembly of Resolution 37/92 (10 December 1982) which basically
confirmed that there should be such a requirement (paras 13–15). Resolution 37/92 was
adopted by 107 to 13 votes with 13 abstentions. While France, Portugal, and Sweden
abstained, and Turkey and Cyprus went along with the majority, all other Western States
voted against the resolution, which they viewed as an infringement of the right to freedom
of information and communication and the principle of the free flow of information across
frontiers. In their view, the rules relating to the freedom of international radio broadcasting
must apply equally to DBS, without any requirement of having to obtain prior consent of the
receiving state.
20 UN General Assembly 37/92 Resolution is not legally binding. As such, it did not
introduce any change to customary international law. But it was also clear that a number of
issues connected with the use of the new technology still needed to resolved, such as the
protection of minors or respect for cultural differences (broadcasting a video recording a
Spanish bull fight to India was a frequently cited example).
2. Freedom of Expression and Information in Human Rights Treaties

21 In language inspired by Art. 19 UDHR, the freedoms of opinion, expression, and
information are guaranteed on the universal level by the → International Covenant on Civil
and Political Rights (1966) (‘ICCPR’; ‘Covenant’) (Art. 19), and, on the regional level,
primarily by the → European Convention for the Protection of Human Rights and
Fundamental Freedoms (1950) (‘ECHR’) (Art. 10) and the → American Convention on
Human Rights (1969) (Art. 13). These treaties seem to regard the freedom to hold opinions
and freedom of information as subcategories of the freedom of expression. Art. 9 → African
Charter on Human and Peoples’ Rights (1981) uses a different formulation.
22 All of the afore-mentioned treaties guarantee freedom of expression and information in

general terms. Their wording does not distinguish between the different media except for
the provision in the ECHR that States are not prevented from requiring the licensing of
radio and television broadcasting enterprises or cinemas (Art. 10 (1)). They do not
specifically enshrine freedom of the press. However, there are marked differences as to the
content and practical relevance of the rights they lay down in often similar terms.
(a) International Covenant on Civil and Political Rights

23 Art. 19 (2) ICCPR states that:
Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
(i) Human Rights Committee Draft General Comment No 34

24 The implementation of the ICCPR is monitored by the Human Rights Committee, a body
of independent experts. The Committee has various functions, one of which is to publish its
interpretation of the content of human rights provisions in so-called General Comments.
The Committee issued a very short General Comment No 10: Freedom of expression (Art.
19) in 1983. As this document had long become out-dated, the Committee has recently
started to prepare a new General Comment on Art. 19. It completed its first reading of draft
General Comment No 34 on freedom of opinion and expression at the end of 2010.
(ii) Basic Concepts and Scope

25 The more extensive text starts with the basic assertion that the rights to freedom of
opinion and expression are ‘indispensable conditions for the full development of the
person’, ‘essential for any society’, and the ‘foundation stone for every free and democratic
society’ (para. 2). It also confirms that they ‘form a basis for the full enjoyment of a wide
range of other human rights’ and mentions as an example that ‘freedom of expression is
integral to the enjoyment of the rights to freedom of assembly and association’ (para. 3).
26 As regards possible reservations to the ICCPR, it is interesting to note that the draft
accepts reservations to ‘particular elements’ of Art. 19 (2), but not a general reservation to
the rights set out in that paragraph because this would be ‘incompatible with the object and
purpose of the Covenant’ (para. 5).
27 In a significant step, the draft extends the obligations of States in relation to → non-
State actors. It insists that State Parties ‘must also ensure that persons are protected from
any acts of private persons or entities that would impair the enjoyment of freedoms of
opinion and expression in so far as these Covenant rights are amenable to application
between private persons or entities’ (para. 6).
28 With reference to its earlier findings in a number of cases, the Committee adopts a very
broad interpretation of the scope of the freedom of expression in Art. 19 (2):
This right extends to the guarantee of the expression of every form of subjective
idea and opinion capable of transmission to others, subject to the provisions in
article 19, paragraph 3, and article 20. It includes political discourse, commentary
on one’s own and on public affairs, canvassing, discussion of human rights,
journalism, cultural and artistic expression, teaching, religious discourse [and
commercial advertising]. The scope of paragraph 2 embraces even views that may
be regarded as deeply offensive, although such expression may be restricted in
accordance with the provisions of article 19, paragraph 3 and article 20 (para. 11).
29 The Committee further notes that paragraph 2 covers all forms of expression and the
means of their publication:
Such forms include, but are not limited to, the spoken and written word and such
non-verbal expression as images and objects of art. Means of expression include
books, newspapers, pamphlets, posters, banners and legal submissions. They
include all forms of audio-visual as well as electronic and Internet-based media.
Paragraph 2 does not, however, provide a right of free expression in any specific
location (para. 12).
30 The draft also addresses the relationship between freedom of expression and the media.
It notes that a ‘free, uncensored and unhindered press or other media is essential in any
society for the ensuring of freedom of opinion and expression and the enjoyment of other
Covenant rights’ and confirms that it ‘constitutes one of the cornerstones of a democratic
society’ (para. 14). It further elaborates that the Covenant:
embraces a right to receive information on the part of the media as a basis on which
they can carry out their function. The free communication of information and ideas
about public and political issues between citizens, candidates and elected
representatives is essential. This implies a free press and other media able to
comment on public issues without censorship or restraint and to inform public
opinion. Pursuant to article 19, the public also has the right to receive information
as a corollary to the specific function of any journalist to impart information (para.
14).
31 One important weakness in the draft is that it does not sufficiently reflect the rapid
development of new media organizations that make use of information and communications
technologies, such as the Internet (see Article 19: Global Campaign for Free Expression
‘Statement on Draft General Comment No 34’ para. 13). The draft General Comment No 34
explicitly recognizes that Art. 19 (2) ‘embraces a general right of access to information held
by public bodies’ (para. 18, emphasis added; see also paras 19–20 for details).
32 Furthermore, as regards the relation between freedom of expression and political
rights, the Committee refers to its General Comment No 25 ‘The Right to Participate in
Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Art. 25)’ of 12
July 1996 (para. 21). Again, the Committee does not adequately consider the increasingly
important role of individual citizens using modern information and communication
technologies, such as the Internet and mobile phones (see Art. 19: Global Campaign for
Free Expression, Statement, para. 28).
(iii) Limitations
33 While there is no specific limitation of the freedom of opinion in Art. 19 (1) Covenant,
the exercise of the freedoms of expression and information provided in Art. 19 (2),
according to para. 3, ‘carries with it special duties and responsibilities’. It may be subject to
restrictions by law if necessary to protect the rights and reputation of others (→ Intellectual
Property, International Protection), national security, public order, public health, or morals.
34 Any construction of Art. 19 must start from the premise that the guarantee of rights in
Art. 19 (2) is the rule and Art. 19 (3) only the exception. This is clearly also the approach
adopted in draft General Comment No 34 which states that ‘when a State party imposes
restrictions on the exercise of freedom of expression, these may not put in jeopardy the
right itself’ and that ‘the relation between right and restriction and between norm and
exception must not be reversed’ (para. 22, see also General Comment No 27 ‘Freedom of
Movement [Art. 12]’ of 18 October 1999). This is a positive development because in the
past, especially during the Cold War, the interpretation of Art. 19 (3) suffered considerably
from the fact that its wording reflects a compromise formulation bridging the opposite
views of liberal democracies and socialist States on the free flow of information. Art. 19 (3)
served to accommodate quite divergent interpretations and in the practice of some States it
was frequently invoked, inappropriately, as a sweeping reservation of State sovereignty.
35 It is also encouraging that the draft is quite explicit in condemning certain practices as
being incompatible with the Covenant. The limits laid down in paragraph 3 ‘may never be
invoked as a justification for the muzzling of any advocacy of multi-party democracy,
democratic tenets and human rights. Nor, under any circumstances, can an attack on a
person, because of the exercise of his or her freedom of opinion or expression, including
such forms of attack as arbitrary arrest, torture, threats to life and killing, be compatible
with article 19’ (para. 24).
36 Reporters and human rights activists are specially mentioned:
Journalists are frequently subjected to such threats, intimidation and attacks

because of their activities. So too are persons who engage in the gathering and
analysis of information on the human rights situation and who publish human
rights-related reports. All allegations of attacks on or other forms of intimidation or
harassment of journalists, human rights defenders and others should be vigorously
investigated, the perpetrators prosecuted, and the victims, or, in the case of killings,
their representatives, be in receipt of appropriate forms of redress (para. 24).
37 As regards the protection of national security or of public order (ordre public), the draft
sets out certain requirements for limitations based on official secrets and sedition laws. In
the view of the Committee, it:
is not compatible with paragraph 3, for instance, to invoke treason laws to

prosecute journalists, researchers, environmental activists, human rights defenders,
or others, for having disseminated information of legitimate public interest. Nor is it
generally appropriate to include in the remit of a State secrets law such categories
of information as those relating to the commercial sector, banking and scientific
progress (para. 31).
38 Restrictions based on ‘public morals’ are more difficult to deal with, due to → cultural
diversity. The Committee admits frankly that ‘the content of the term may differ widely
from society to society—there is no universally applicable common standard’ (para. 33 with
reference to Communication No 61/1979 Hertzberg et al v Finland and Communication No
195/1985 Delgado Pàez v Colombia). The Committee, however, affirms that ‘the concept of
morals derives from many social, philosophical and religious traditions; consequently,
limitations for the purpose of protecting morals must be based on principles not deriving
exclusively from a single tradition’ (para. 33 with reference to General Comment No 22 ‘The
Right to Freedom of Thought, Conscience and Religion [Art. 18]’ of 20 July 1993; see the
Danish Cartoon case below).
39 There are other observations in the draft explaining the meaning of what is a
‘necessary’ restriction for a legitimate purpose (para. 34) and the importance of the
principle of → proportionality (para. 35 with reference to General Comment No 27). The
Committee does not grant State Parties a ‘margin of appreciation’ in determining whether a
restriction may have been necessary in a given case. The Committee reserves such
assessment to itself (para. 37).
40 A special section of the draft General Comment No 34 deals with restrictions on

freedom of expression on certain specific areas. It includes a detailed discussion of the
regulation of the content of political discourse and of the mass media (paras 38–44; see also
→ Mass Media, Influence on International Relations), but addresses important
developments in the past ten years in modern information and communication technologies
only in passing.
41 Other parts of the draft look into the conditions under which counter-terrorism
measures are compatible with Art. 19 (3) (para. 48) and how defamation laws, blasphemy
prohibitions, and laws criminalizing the promulgation of certain views about past events
(‘memory-laws’) may be reconciled with that provision (paras 49–51).
42 Apart from the limitations on freedom of expression that State Parties may adopt under
Art. 19 (3), there is Art. 20 which calls for the prohibition by law of propaganda for war
(→ Propaganda for War, Prohibition of) and advocacy of national, racial, or religious hatred
constituting incitement to discrimination, hostility, or violence. States are required to
prohibit by law acts addressed in Art. 20. In this sense, Art. 20 is lex specialis with respect
to Art. 19. The latter provision does not require any prohibitions, but only sets out
requirements for deciding whether restrictions on freedom of expression are permissible
(see draft General Comment No 34, paras 52–53).
43 Finally, it may be noted that the Committee does not consider ‘hate speech’ to fall
within Art. 20 because it would not ‘meet the level of seriousness’ set out in that article.
Thus, there is no obligation to prohibit ‘hate speech’ under Art. 20, although justified
restrictions can be introduced under Art. 19.
(b) UN Special Rapporteur

44 In 1993 the UN Commission on Human Rights established the office of the UN Special
Rapporteur on the promotion and protection of the right to freedom of opinion and
expression. There was a remarkable debate in 2008 on the renewal of the mandate of the
Special Rapporteur in the then UN Human Rights Council (see Resolution 7/36: Mandate of
the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion
and Expression [28 March 2008]). At the request of the → Organization of the Islamic
Conference (OIC) (which was angered by inflammatory caricatures and documentaries
about Islam), the Council accepted a problematic amendment to the mandate stating that
religious discrimination would not be protected by freedom of expression.
45 As to the background, in 2005, a Danish cartoonist had made a drawing of the Prophet
Mohammed, the founder of Islam, with a turban resembling a bomb, which caused Muslim
outrage worldwide, resulting in at least 50 deaths. For years, the cartoonist had to live
under police protection in Denmark, which insisted that he was protected by the freedom of
speech and democracy in that country. In 2011, a Danish Court convicted a Somali man,
who had broken into the home of the cartoonist with an axe, for an act of attempted
terrorism for trying to kill the cartoonist.
46 The case reminds one of the fatwa issued by Ayatollah Ruhollah Khomeini, the Supreme
Leader of Iran, in 1989 against the writer Salman Rushdie for his novel The Satanic Verses
which caused controversy in the world of Islam because it was also seen as an irreverent
depiction of the Prophet Mohammed. Due to death threats, Rushdie was forced to go into
hiding in Britain under police protection for several years. The Iranian government
disassociated itself from the death fatwa in 1998, but in 2005 Ayatollah Ali Khamenei, Iran’s
Supreme Leader, reaffirmed the fatwa. These cases and the aforementioned decision of the
UN Human Rights Council demonstrate how difficult it can be to find consensus on
universal values.
(c) European Convention for the Protection of Human Rights and

Fundamental Freedoms
47 In the Vienna Declaration on the Reform of the Control Mechanism of the ECHR, on
National Minorities, and on a Plan of Action against Racism ([9 October 1993] (1993) 14
HRLJ 373–6), the Council of Europe made it a decisive condition for new members that they
respect freedom of expression and freedom of the media. The ECHR lays down the precise
legal criteria of these rights in Art. 10.
(i) Basic Concepts

48 There is a considerable body of case-law on the meaning of Art. 10 ECHR which finds
no counterpart under the other international human rights instruments. The → European
Court of Human Rights (ECtHR) has repeatedly emphasized the crucial social and political
function of the rights in Art. 10 as essential foundations of a democratic and pluralistic
society (Handyside v United Kingdom [1976]; Sunday Times [1979]). This perspective bears
significantly upon the construction of the restrictive clause in Art. 10 (2). The list of reasons
justifying restrictions is similar to, but longer than, the one in Art. 19 (3) ICCPR. In actual
fact, however, the possibility of restricting the freedoms of expression or information is far
more limited than under the Covenant. According to the jurisprudence of the organs of the
ECHR any restriction must not only have a legal, though not necessarily formal, basis—in
the sense of meeting a pressing social need and the requirement of proportionality—but
also be ‘necessary in a democratic society’, a condition which is laid down explicitly in Art.
10 (2). This requirement, interpreted narrowly by the Court, considerably limits the margin
of appreciation which States enjoy in assessing the reasons for restricting the freedoms in
Art. 10 (1).
49 As noted in one recent case by the ECtHR:
Freedom of expression constitutes one of the essential foundations of a democratic

society and one of the conditions for its progress and for each individual’s self-
fulfilment. Subject to parargraph 2, it is applicable not only to ‘information’ or
‘ideas’ that are favourably received or regarded as inoffensive or as a matter of
indifference, but also to those that offend, shock or disturb. Such are the demands
of that pluralism, tolerance and broadmindedness without which there is no
‘democratic society’. As set forth in article 10, this freedom is subject to exceptions,
which must, however, be construed strictly, and the need for any restrictions must
be established convincingly (Raichinov v Bulgaria [2006] para. 47).
(ii) Margin of Appreciation and Control by the Court

50 As regards the meaning of the adjective ‘necessary’ in Art. 10 (2), the ECtHR recently
confirmed in the case of MGN Limited v United Kingdom in its judgment of 18 January 2011
that it ‘implies the existence of a “pressing social need”’. The contracting States have a
certain margin of appreciation in assessing whether such a need exists, but it goes hand in
hand with European supervision, embracing both the legislation and the decisions applying
it, even those given by an independent court. The Court is therefore empowered to give the
final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as
protected by Art. 10 (para. 139).
51 The Court further elaborated on the task of exercising its supervisory jurisdiction. It:
is not to take the place of the competent national authorities but rather to review
under Article 10 the decisions they delivered pursuant to their power of
appreciation. This does not mean that the supervision is limited to ascertaining
whether the respondent State exercised its discretion reasonably, carefully and in
good faith; what the Court has to do is to look at the interference complained of in
the light of the case as a whole and determine whether the reasons adduced by the
national authorities to justify it are ‘relevant and sufficient’ and whether it was
‘proportionate to the legitimate aim pursued’. In doing so, the Court has to satisfy
itself that the national authorities applied standards which were in conformity with
the principles embodied in Article 10 and, moreover, that they relied on an
acceptable assessment of the relevant facts (ibid).
(iii) Right to Receive Information from Abroad

52 It is beyond the scope of the present article to enter into a full discussion of the various
aspects of the many cases decided by the Court under Art. 10. But it should be at least
noted that under the Convention there is a clear right of individuals to receive, with the
means available to them, information of any legally established foreign media. There is a
duty upon States not to resort to the jamming of foreign broadcasts, the content of which is
within the liberal scope of the Convention. Important early clarifications were given by the
European Court of Human Rights in two cases filed against Switzerland. In both the
Groppera Radio AG v Switzerland case (judgment of 28 March 1990), concerning
restrictions on the distribution of radio programmes by cable operators, and in Autronic AG
v Switzerland (judgment of 22 May 1990), dealing with restrictions on the reception of
foreign satellite television broadcasts, the Court adopted a liberal approach and set land-
marks for the use of these new media.
(iv) Council of Europe Instruments

53 Moreover, the Council of Europe (now 47 Member States) has often drawn upon Art. 10
ECHR in declarations and recommendations on freedom of information and communication,
most recently, for example, in the Declaration of the Committee of Ministers on Measures to
Promote the Respect of Article 10 of the European Convention of Human Rights (January
2010); Recommendation No 1897 ‘Respect for Media Freedom’ by the Parliamentary
Assembly of the Council of Europe (January 2010); or Resolution No 1729 ‘Protection of
“Whistle-Blowers”’ (April 2010).
(d) Charter of Fundamental Rights of the European Union
54 The → Charter of Fundamental Rights of the European Union (2000) became legally
binding with the entry into force of the → Lisbon Treaty on 1 December 2009. Art. 11 deals
with freedom of expression and information and corresponds to Art. 10 ECHR. Art. 11 (1)
states that ‘[e]veryone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers’. Art. 11 (2) stipulates that the
‘freedom and pluralism of the media shall be respected’.
55 According to Art. 52 (3) Charter, the meaning and scope of this right are the same as
provided for by the ECHR. Thus any limitations may not exceed those provided for in Art.
10 (2) Convention, except possibly for restrictions that may arise under EU competition law
regarding the licensing requirement in Art. 10 (1) ECHR (see the Explanations to the
Charter [2007] OJ C 303 /17).
56 Furthermore, freedom of expression as embodied in Art. 10 ECHR is a general principle

of law, the observance of which is ensured by the European Court of Justice (C-260/89 ERT
v DEP [Judgment of 18 June 1991] para. 44).
(e) American Convention on Human Rights

57 In contrast to the non-binding → American Declaration of the Rights and Duties of Man
(1948) which proclaimed only briefly that every person has ‘the right to freedom of
investigation, of opinion, and of the expression and dissemination of ideas, by any medium
whatsoever’ (Art. IV), the American Convention on Human Rights has adopted more
complete and complex provisions. Art. 13 (1) guarantees the right to freedom of thought
and expression including freedom of information. Art. 13 (2) contains a rather unique
provision as compared with other human rights treaties and expressly prohibits prior
censorship as to the exercise of those rights with the qualification, however, that public
entertainment may be subject by law to such control ‘for the sole purpose of regulating
access to them for the moral protection of childhood and adolescence’ (Art. 13 (4)).
58 Authorizing the ‘subsequent imposition of liability’, Art. 13 (2) contains a reservation

clause the wording of which is modelled after Art. 19 (3) ICCPR and therefore less precise
than that of Art. 10 (2) ECHR. There is, however, nothing comparable in the other human
rights treaties to Art. 13 (3) American Convention which stipulates that the right of
expression:
may not be restricted by indirect methods or means, such as the abuse of

government or private controls over newsprint, radio broadcasting frequencies, or
equipment used in the dissemination of information, or by any other means tending
to impede the communication and circulation of ideas and opinions.
59 This provision expressly prohibits jamming and must be read in conjunction with Art. 13
(5) which serves purposes similar to those of Art. 20 ICCPR. Art. 14 American Convention
explicitly establishes and regulates in more detail a right of an individual offended by a
medium to reply or make a correction.
60 In 1997 the → Inter-American Commission on Human Rights (IACommHR) established

the institution of an OAS Special Rapporteur on Freedom of Expression. It also created a
Voluntary Fund for Freedom of Expression to support the Special Rapporteur.
(f) African Charter on Human and Peoples’ Rights
61 The 1981 African Charter on Human and Peoples’ Rights states that every individual
shall have the ‘right to receive information’ (Art. 9 (1)) and ‘to express and disseminate his
opinions within the law’ (Art. 9 (2)), subject, however, to the ‘duties’ of the individual as set
out generally in Arts 27 to 29. In 2002 the African Commission on Human Rights and
Peoples’ Rights adopted a Declaration of Principles of Freedom of Expression and in 2005 it
decided to appoint a Special Rapporteur on Freedom of Expression in Africa.
3. Selected Other Instruments

62 There are a number of multilateral treaties dealing with relevant rights of specific
groups, such as the 1965 International Convention on the Elimination of all Forms of Racial
Discrimination (Art. 5), the 1979 Convention on the Elimination of Discrimination Against
Women (Art. 3) and the 1989 Convention of the Rights of the Child (Arts 13 and 17).
63 Furthermore, in the → Helsinki Final Act (1975) of the Conference on Security and Co-
operation in Europe, East and West confirmed the fundamental freedoms of expression and
information and agreed upon the wider dissemination of information of all kinds. These
rights then played a prominent role in the subsequent follow-up of the Helsinki Process,
although the documents remained non-binding. In 1997 the → Organization for Security and
Co-operation in Europe (OSCE), with 55 participating States from Europe, Central Asia, and
North America, then established an OSCE Representative on Freedom of the Media.
64 Under the 1953 Convention on the International Right of Correction a State affected by
a false or distorted news dispatch may submit its version of the facts to States within the
territories of which such dispatch has been published or disseminated. The receiving State
is obliged to release the communiqué to the correspondents and information agencies
operating in its territory, but the Convention does not impose an obligation on the press or
other media to publish it. The Convention, ratified by only a few countries, is largely
ineffective.
65 An area that has gained more and more importance is the right of access to information
and data held by governments. Many countries have adopted respective freedom of
information laws. A Council of Europe Convention on Access to Official Documents was
opened for signature in 2009. There are also EU rules on the matter. On the global level, we
have the 1996 Johannesburg Principles on National Security, Freedom of Expression and
Access to Information. These principles were drawn up by a group of international law
experts and then endorsed by the UN Special Rapporteur on Freedom of Opinion and
Expression in his 1996 annual report.
66 The 2003 Declaration of Principles adopted by the World Summit on the Information
Society reaffirmed:
as an essential foundation of the Information Society, and as outlined in Article 19 of

the Universal Declaration of Human Rights, that everyone has the right to freedom
of opinion and expression; that this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers. Communication is a fundamental social process,
a basic human need and the foundation of all social organisation. It is central to the
Information Society. Everyone, everywhere should have the opportunity to
participate and no one should be excluded from the benefits of the Information
Society offers (WSIS-03/Geneva/Doc/4-E [12 December 2003] para. 4).
67 In 2009, the (as such legally non-binding) Camden Principles on Freedom of Expression
were adopted by Article 19: Global Campaign for Free Expression. High-level UN and other
officials, NGOs, and academic human rights experts agreed on a progressive interpretation
of relevant standards under international law. The principles deal with legal protection for
equality and freedom of expression, the right to be heard, and the right to speak, promoting
intercultural understanding, freedom of expression, and harmful speech, including
incitement to hatred.
4. Internet Freedom and Content Control

(a) Government Control of Internet Access and Censorship of Content
68 A number of governments, while remaining interested in benefiting from the economic
and other advantages offered by the new technologies, exercise censorship and try to
control the content of websites, blogs, and messages. Sometimes governments may also
employ these new technologies as instruments to influence public opinion, or to counter or
extinguish political or social protests.
(i) Increasing Practice of Control

69 Reporters without Borders, a group based in Paris promoting freedom of the press,
released in March 2011 a new annual list for 2010 of the ‘Enemies of the Internet’. This list
names the following ten alleged main culprits in alphabetical order: Burma; China; Cuba;
Iran; North Korea; Saudi Arabia; Syria; Turkmenistan; Uzbekistan; and Vietnam. Because of
the overthrow of the governments in the recent Arab uprising, Egypt and Tunisia were
moved to the list of ‘Countries under surveillance’. The latter list further includes: Australia;
Bahrain; Belarus; Eritrea; France; Libya; Malaysia; Russia; South Korea; Sri Lanka;
Thailand; Turkey; the United Arab Emirates; and Venezuela. Other sources list some 40
countries as controlling Internet content. Some Western democracies are reported to have
started filtering certain Internet content, such as child pornography and other sexually-
orientated material (International Herald Tribune [2–3 May 2009] 4).
70 In January 2011, the Egyptian government blocked Internet access for nearly the entire
population, cut off mobile phone service, and jammed satellite television signals for five
days in a vain attempt to control the protests of hundreds of thousands of Egyptians
demanding the overthrow of the government. The Tunisian and Libyan governments also
cut off the Internet when they were confronted with the popular uprisings.
(ii) Circumvention Measures

71 But increasing government efforts to control access to, and content of, the Internet has
provoked countermeasures by governments, NGOs, and individuals interested in reducing
or evading censorship. Software is widely available supporting circumvention of the
blocking of access to foreign-based websites. One very active organization in this respect is
the Global Internet Freedom Consortium, based largely in the US, a group closely aligned
with the Falun Gong spiritual movement, which is banned in China (the government alleges
it is a dangerous sect that has ruined the lives of thousands of people). The Consortium
operates a series of computers located in data centres around the globe routing requests
from users to bypass government censorship of certain websites. But there are also other
providers, such as the Tor Project or the Psiphon system developed at the University of
Toronto.
72 The way such a circumvention system operates has been described as follows:
Government censorship systems can block access to certain Internet protocol
addresses. The equivalent of phone numbers, these addresses are quartets of
numbers, like 209.85.171.100, that identify a Web site, in this case, google.com. By
clicking on a link provided in the consortium’s e-mail message, someone in China or
Iran trying to reach a forbidden website can download software that connects to a
computer abroad that then redirects the request to the site’s forbidden address …
The technique works like a basketball bank shot—with the remote computer as the
backboard and the desired Web site as the basket. But government systems hunt for
and then shut off such alternative routes using a variety of increasingly
sophisticated techniques. So the software keeps changing the Internet address of
the remote computer—more than once a second. By the time the censors identify an
address, the system has already changed it (Markoff 4).
(iii) The Great Firewall of China

73 China’s practice of controlling the content of the Internet is of particular interest, not
only because of the size of its population and market, but also because China is considered
to have the most sophisticated and effective control system. In 2010, China already had 457
million Internet users, more than any other country. This is a very lively and outspoken
community of ‘netizens’. In 2010, China was reported to have about 230 million bloggers
and 277 million people surfing the Internet on mobile phones (Wang Chen, Minister of
China’s State Council Information Office, China Daily [23 November 2010]). In 2010, the
scale of the Internet market in China reached 183 billion Yuan (US$27 billion), a nearly 32%
annual increase, and a transaction volume of e-commerce of more than 3.6 trillion Yuan
(ibid).
74 China’s control of the Internet is known as the ‘Great Firewall of China’. It was
designed by Fang Binxing, President of the Beijing University of Posts and
Telecommunications. China is said to employ more than 40,000 people as ‘Internet police’
stationed in a number of regional centres. It also engages hundreds of thousands of
students and private citizens, enlisted as volunteers or paid commentators, to ‘steer’ online
discussions in a desirable direction, or act as informants to the authorities (Markoff 4). The
participants in this scheme, who are paid to post pro-government views on the Internet, are
known in China as the ‘Fifty-cent party’.
75 While most material on the global Web can be accessed freely from China, many foreign
websites deemed to be sensitive by the government are blocked by this Firewall, including
Facebook, YouTube, Twitter, Blogspot, Typepad, Voice of America, and Radio Free Asia.
Search engines inside China will not link to content associated, for example, with the
Tiananmen Square incident in 1989, the independence of Tibet, the banned spiritual
movement Falun Gong, or the award of the 2010 Nobel Peace Prize to the imprisoned
dissident Liu Xiabo. Internet companies in China are required by law to delete any political
or other material that the government considers objectionable.
76 China does not dispute that it monitors Internet content, but it argues that it acts like
many other countries in the interest of protecting citizens against harmful material, crime,
fraud, pornography, and treasonous propaganda. A government White Paper on the Internet
in China was published on 8 June 2010 to explain the official position. Describing the
Internet as a ‘crystallization of human wisdom’, the paper emphasizes the important role
the Internet plays in China’s development and provides impressive facts on the Internet
situation in the country.
77 It also outlines China’s basic policies with respect to investment into Internet
infrastructure as well as the promotion of extensive use of the Internet in various forms.
The paper further gives assurances that the Chinese government:
provides the public with a full range of news, and at the same time guarantees the
citizens’ freedom of speech on the Internet as well as the public’s right to know, to
participate, to be heard and to oversee in accordance with the law (Part III).
78 With reference to the Constitution of the People’s Republic, it emphasizes that Chinese
citizens ‘fully enjoy freedom of speech on the Internet’ (ibid).
79 But it also notes that:
while exercising such freedom and rights, citizens are not allowed to infringe upon
state, social and collective interests or the legitimate freedom and rights of other
citizens. No organization or individual may utilize telecommunication networks to
engage in activities that jeopardize State security, the public interest or the
legitimate rights and interests of other people (Part IV).
80 Other sections deal with the need ‘to curb dissemination of illegal information online’.
Reference is made to laws and regulations that:
clearly prohibit the spread of information that contains contents subverting State
power, undermining national unity, infringing upon national honor and interests,
inciting ethnic hatred and secession, advocating heresy, pornography, violence,
terror and other information that infringes upon the legitimate rights and interests
of others. According to these regulations, basic telecommunications business
operators and Internet information service providers shall establish Internet
security management systems and utilize technical measures to prevent the
transmission of all types of illegal information (ibid).
81 Apart from specifically addressing online safety for minors, the protection of intellectual
property, and online privacy of citizens (→ Privacy, Right to, International Protection), the
White Paper also lays out the Chinese regulations protecting Internet security, stipulating,
inter alia:
that no organization or individual may produce, duplicate, announce or disseminate

information having the following contents: being against the cardinal principles set
forth in the Constitution; endangering State security, divulging State secrets,
subverting State power and jeopardizing national unification; damaging State honor
and interests; instigating ethnic hatred or discrimination and jeopardizing ethnic
unity; jeopardizing State religious policy, propagating heretical or superstitious
ideas; spreading rumours, disrupting social order and stability; disseminating
obscenity, pornography, gambling, violence, brutality and terror or abetting crime;
humiliating or slandering others, trespassing on the lawful rights and interests of
others; and other contents forbidden by laws and administrative regulations. These
regulations are the legal basis for the protection of Internet information security
within the territory of the People’s Republic of China. All Chinese citizens, foreign
citizens, legal persons and other organizations within the territory of China must
obey these provisions’ (Part V).
82 On the other hand, government statements often praise the positive supervisory role of
‘netizens’ when, for example, filing complaints against corrupt officials.
83 Internet content control in China includes blog censorship that is not implemented
directly by the Chinese authorities themselves, but by private Internet providers, such as
Yahoo China, Microsoft, and MySpace (MacKinnon). China’s Great Firewall is based upon
Internet filtering. Users connecting to the Internet from a particular network are blocked
from accessing certain websites abroad containing unwelcome content. Filtering is done by
entering the addresses of banned websites and keywords into the routers and software
systems that control Internet traffic across the domestic networks in China and at the
gateway points connecting the domestic Chinese Internet and the global Internet.
84 As noted above, the filtering method used for Internet control by the Great Firewall in
China can be circumvented by proxy servers and other techniques. But there is another
level of Internet content control in China against which such methods do not work.
Circumvention options cannot:
address the separate problem of domestic Internet censorship. For content on Web
sites hosted on computer servers in China, circumventions tools are irrelevant
because content has been deleted or prevented from existing … The whole process
is carried out almost entirely by employees of Internet companies, not by ‘Internet
police’ or other government officials (MacKinnon).
85 By law, all companies operating websites (search engines, forums, blogs, or whatever)
in China (including Google, Yahoo, and Microsoft) are obliged to comply with government
censorship demands if they wish to keep their business licences. Apparently, within this
system there is a tendency towards stricter self-censorship in the implementation phase
when companies try to comply with government directives on content control. Companies
are also required to co-operate with the government on matters relating to national security
under an amendment in April 2010 to the State Secrets Law containing not very clear
definitions of what constitutes a ‘State secret’.
(b) International Rules Governing the Internet and its Content

86 The following first discusses the rules governing the Internet and its content on the
European regional level (disregarding the special domain of EU law) and then addresses the
global context.
(i) European Regional Level

87 After issuing a Declaration on a European Policy for New Information Technologies in
1999, adopting the Convention on Cybercrime in 2001, and issuing Recommendation Rec
(2001) 8 on Self-Regulation Concerning Cyber Content (Self-Regulation and User Protection
against Illegal or Harmful Content on New Communications and Information Services), in
2003 the Council of Europe adopted a Declaration on Freedom of Communication on the
Internet. The explanatory note to the Declaration notes the reason for adopting the
Declaration:
Over the past few years, there has been a marked tendency by some governments
to restrict and control access to the Internet in a manner which is incompatible with
international norms on freedom of expression and information (Introduction).
88 The Declaration affirmed that Member States ‘should not subject content on the
Internet to restrictions which go further than those applied to other means of content
delivery’ (Principle 1). What is legal off-line is also legal on-line.
89 Another important aspect is the absence of prior State control. Principle 3 states:
Public authorities should not, through general blocking or filtering measures, deny
access by the public to information and other communication on the Internet,
regardless of frontiers. This does not prevent the installation of filters for the
protection of minors, in particular in places accessible to them, such as schools or
libraries.
90 In refreshing words, the explanatory note explains:
This principle underlines the importance of no prior State control over what the
public can search for on the Internet. In some countries, there is a tendency to
block access by the population to content on certain foreign or domestic web sites
for political reasons. This and similar practices of prior State control should be
strongly condemned (at Principle 3 ‘Absence of Prior State Control’).
91 Other Principles ensure that the setting-up and running of individual websites are ‘not
subject to any licensing or other requirements having a similar effect’ (Principle 4);
guarantee the freedom to provide services over the Internet (Principle 5); impose limits on
the liability of service providers for Internet content (Principle 6); and the obligation of
States to ‘respect the will of users of the Internet not to disclose their identity’ (Principle 7).
92 Following Recommendation Rec (2004) 15 on electronic governance, the 2005

Declaration on Human Rights and the Rule of Law, and Recommendation Rec (2007) 11 on
promoting freedom of expression and information in the new information and
communication environment, the Committee of Ministers adopted Recommendation Rec
(2007) 16 on measures to promote the public service value of the Internet.
93 The recommendation underlined the ‘legitimate expectation [of people] that Internet
services be accessible and affordable, secure, reliable and ongoing’ (at clause 15). It stated
that the protection of this expectation ‘should be a priority with regard to the governance of
the Internet’ (at clause 16).
94 Recommendation Rec (2008) 6 of the Committee of Ministers to Member States on

measures to promote the respect for freedom of expression and information with regard to
Internet filters was adopted on 26 March 2008. It aims at ensuring that Internet users
understand how to use Internet control filters, especially to protect children and young
people against harm. Other relevant measures include: (1) Recommendation Rec (2009) 5 of
the Committee of Ministers to Member States on measures to protect children against
harmful content and behaviour and to promote their active participation in the new
information and communications environment (July 2009); and (2) Recommendation on the
promotion of Internet and online media services appropriate for minors by the
Parliamentary Assembly of the Council of Europe (September 2009).
95 The 2010 Council of Europe Declaration on Network Neutrality starts from the fact that
‘[e]lectronic communication networks have become basic tools for the free exchange of
ideas and information’ (at para. 3). As the use and further development of the Internet may
be ‘adversely affected by non-transparent traffic management, content and services’
discrimination or impeding connectivity of devices’ (ibid), a general principle of ‘network
neutrality’ should be introduced. This principle serves to give users ‘the greatest possible
access to Internet-based content, applications and services of their choice, whether or not
they are offered free of charge, using suitable devices of their choice’ (para. 4).
96 The Declaration emphasizes that both users and providers:
should be able to gauge the impact of network management measures on the
enjoyment of fundamental rights and freedoms, in particular the rights to freedom
of expression and to impart or receive information regardless of frontiers, as well as
the right to respect for private life (at para. 8).
97 Art 10 ECHR does not expressly mention Internet freedom. But it is clear from the case-
law that information and views expressed on a webpage are also covered by the freedom of
expression guaranteed in that provision (ECtHR Perrin v United Kingdom [Judgment of 18
October 2005]). Internet archives are protected by Art. 10 (ECtHR Times Newspapers Ltd v
United Kingdom [Nos 1 and 2] [Judgment of 10 March 2009] para. 27). A popular Internet
forum enjoys the same level of protection under Art. 10 as the printed press (ECtHR
Fatullayev v Azerbaijan [Judgment of 22 April 2010] para. 95).
98 However, State control also has a role to play in the exercise of Internet freedom under
the Convention (ECtHR Megadat.com SRL v Moldava [Judgment of 8 April 2008] para. 68).
In the latter case, the Court also held that a licence granted to provide Internet services
was a possession within the scope of Art. 1 First Protocol. A termination of the licence is
equivalent to interference (ibid paras 62–64). Moreover, Art. 1 may be invoked to protect
registered domain names (ECtHR Paeffgen GmbH v Germany [Judgment of 18 September
2007]).
(ii) Global Level

99 As noted above, the draft General Comment No 34 of the Human Rights Committee
does not yet adequately address the role of new media and information and communication
technologies. As regards right of State Parties to the ICCPR to set limits to freedom of
expression under Art. 19 (3), the draft merely states: ‘Legislative and administrative
frameworks for the regulation of the mass media should be reviewed to ensure that they are
consistent with the provisions of paragraph 3’. It adds that ‘[r]egulatory systems should
take into account the differences between the print and broadcast sectors and the Internet,
while also noting the manner in which various media converge’ (para. 41). But there is no
reflection on the effect of the differences between these forms of media on regulatory
systems (see Article 19: Global Campaign for Free Expression ‘Statement’ para. 36).
100 There is only a rather general statement on possible restrictions:
Any restrictions on the operation of websites, blogs or any other Internet-based,

electronic or other such information dissemination system, including systems to
support such communication, such as Internet service providers or search engines,
must be compatible with paragraph 3. Any restrictions must be content-specific.
Generic bans on the operation of certain sites and systems are not compatible with
paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or a system
from publishing material solely on the basis that it may be critical of the
government or the political social system espoused by the government (para. 45).
101 A number of useful improvements to the text in this regard have been suggested by
the NGO Article 19: Global Campaign for Free Expression. There are four main proposals.
First, the Committee should indicate:
that the blocking or filtering of information, removing information from sites,

restricting domain names, and other content based restrictions on providing,
sharing or access to information through the ICTs [information and communication
technologies, PM] are unjustified under Article 19 paragraph 3 of the Covenant
unless they are based on a court order approved by an independent judge taking
into account domestic and international laws on freedom of expression (para. 38).
102 It will be difficult, however, to secure real implementation of this proposal where there
is in fact no effective separation of powers guaranteeing the existence of an independent
judiciary.
103 Second, it is proposed that ‘no individual or party should be held liable for content on
the networks of which they are not the author, unless they have either adopted that content
as their own or refused to obey a court order to remove that content’ (para. 39). The
purpose of this removal of liability is to protect Internet service providers who are
intermediaries acting merely as hosts or conduits.
104 Third, to reduce State control and interference, ‘no one should be required to register
with or obtain permission from a public body to operate a website, blog or other new media
outlet’ (para. 40). Fourth, governments should be obliged to ‘secure net neutrality and
adopt policies that prevent Internet service providers from discriminating against
information services and providers’ (para. 41).
(iii) Internet Content Control

105 Content control issues are delicate. Any global agreement on the control of Internet
content will face the difficulty of bridging different cultural and legal traditions. It is widely
agreed that there must be some restrictions of freedom of expression, eg to combat
commercial fraud and child pornography, to protect national security, and to reign in
defamation that causes demonstrable harm. But beyond this basic consensus, there are
notable differences even among liberal democracies. Quite a number of Western countries
are far less liberal than the US in what they consider acceptable content of speech or
expression.
106 Hate speech, eg inciting racial hatred and violence against minorities, is frequently
prohibited and criminalized in Europe (Alexander [2006]). Germany adopted anti-Nazi
legislation after 1945 which prohibits the formation of a neo-Nazi party, criminalizes
glorification of Nazism and Holocaust denial (the genocidal murder of more than six million
Jews), and prohibits printing Hitler’s Mein Kampf or singing the ‘Horst Wessel’ song. Laws
criminalizing Holocaust denial were also introduced in France, Switzerland, Belgium, Spain,
and other European countries. French law has been expanded by the 1990 Gayssot Law to
prohibit denial of other → crimes against humanity than only the Holocaust. Another area
where relevant laws have been introduced in Europe is ‘hate speech’. This refers to speech
that incites hatred against others based on race, ethnicity, religion, nationality, and other
criteria. Such laws are in force in France, Germany, Austria, Belgium, Sweden, Norway, the
UK, and other countries. Russia’s Prosecutor General’s Office banned Mein Kampf in March
2010, finding it in violation of laws against extremism.
107 This development in Europe was encouraged by the 1965 International Convention on
the Elimination of all Forms of Racial Discrimination (‘ICERD’). It has been ratified by more
than 150 states. Art. 4 ICERD deals with speech and stipulates that parties shall (1)
criminalize the ‘dissemination of ideas based on racial superiority or hatred’; (2) ‘declare
illegal and prohibit organizations … which promote and incite racial discrimination’; (3)
‘shall recognize participation in such organizations or activities as an offense punishable by
law’; and (4) prohibit public authorities from promoting or inciting racial discrimination.
108 Moreover, in 2007 the EU adopted the Framework Decision on Racism and
Xenophobia (16 April 2007). The aim of this Directive is to achieve substantial hate speech
regulation throughout the EU, including public speech condoning, denying, or grossly
trivializing crimes defined by the Nuremberg Tribunal, namely the Holocaust.
109 The US traditionally takes a different view, favouring the ‘marketplace of ideas’
concept. The First Amendment of the US Constitution includes the words that ‘Congress
shall make no law … abridging the freedom of speech, or of the press’. This provision
enshrines one of the most cherished American values constituting a free and open society.
Justice Oliver Wendell Holmes expressed the idea as follows:
When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas—that the best test
of truth is the power of the thought to get itself accepted in the competition of the
market, and that truth is the only ground upon which their wishes can be carried
out. That, at any rate, is the theory of our Constitution. It is an experiment, as all
life is an experiment (Abrams v US [Dissenting Opinion of Justice Holmes] 630).
110 While the wording of the First Amendment seems to guarantee freedom of speech in
absolute terms, no right, of course, can be unlimited. The basic question for the US
Supreme Court has therefore been to determine what kinds of speech are protected by the
First Amendment and which are not. Clearly, harmful forms of speech must be regulated
even if this implies the need to restrict content. Consequently, the Court found that forms of
speech not protected by the First Amendment are, for example, obscenity, defamation,
fighting words, incitement or conspiracy to imminent violence, and true threats (see
Knechtle 46 for references).
111 The jurisprudence of the US Supreme Court has erected strong defences of the
freedom of speech in America. In New York Times Co v United States (1971), for example,
the Supreme Court rejected the claim of the US government that it was entitled to censure
the publication by the New York Times and Washington Post of the then-classified Pentagon
Papers that had been prepared and compiled by government officials responsible for
conducting the Vietnam War. The Supreme Court upheld the right of the editors to publish
the materials on the basis of the constitutional guarantee of the freedom to speak and to
publish as laid down in the First Amendment. It dismissed the claim of the Nixon
administration to secure confidentiality of the information and denied that the government
was entitled to a prior restraint order prohibiting publication in the first place (see the
illuminating remarks by Justice David Souter in his Harvard Commencement Speech [27
May 2010] Harvard Gazette Online).
112 When Congress made its first notable attempt to ban pornographic material on the
Internet with the Communications Decency Act (‘CDA’) of 1996, the Supreme Court even
defended the ‘chaos’ of the Internet against the attempt to restrict content in this respect
(Reno v American Liberties Union [1997]), overturning the law in part).
113 The history of the debate on hate speech in America is quite different from the
development in Europe. Hate speech may fall into some of the categories which the
Supreme Court considers unprotected under the First Amendment, such as fighting words,
defamation and incitement, or actual imminent violence. But, at least so far, no consensus
has emerged in the US to treat hate speech as a separate category requiring a response
going beyond those recognized categories.
114 In a recent decision on the scope of the First Amendment (Snyder v Phelps et al [2
March 2011]), the Court held that the First Amendment even protects hateful protests at
military funerals in a case in which the picketers (peacefully) displayed signs stating, for
example, ‘Thank God for Dead Soldiers’, ‘Fags Doom Nations’, ‘America is Doomed’, ‘Priests
Rape Boys’, and ‘You’re Going to Hell’, for about half an hour before the funeral started.
115 The majority opinion concluded:
Speech is powerful. It can stir people to action, move them to tears of both joy and
sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot
react to that pain by punishing the speaker. As a Nation we have chosen a different
course—to protect even hurtful speech on public issues to ensure that we do not
stifle public debate (at 15).
116 It is no surprise, therefore, that the US when ratifying the ICERD entered a
reservation to the effect that it will not take any measures that violate the First Amendment
to the US Constitution. Consistent with this approach, the US also does not plan to join the
2003 Additional Protocol to the Convention on Cybercrime, Concerning the criminalization
of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems,
although it did accede to the Convention itself.
117 The Yahoo case in France illustrates a clash of legal cultures regarding Internet
content control among democratic societies. Yahoo’s California-based company provided
information services on its US-based website which permitted traffic of material glorifying
Nazism. In the US, this is protected by the First Amendment. In France, it is barred by
French law and punishable under the French Penal Code. In May 2000, the Paris Tribunal
de grande instance made an interim ruling ordering Yahoo to take measures to make it
impossible for its disputed sites and services to be accessed through Yahoo.com by a surfer
calling from France. The Paris Tribunal based its ruling on the assumption, following
technical expert advice, that effective filtering methods were available to Yahoo making it
possible to block access to the Nazi material by French residents without removing it more
generally (also for US citizens, for example). In addition to the injunction and the risk of
financial penalties in the civil action, Yahoo as a company and its CEO were confronted with
criminal charges, but were acquitted in a French court decision that was finally upheld on
appeal in 2005.
118 Yahoo responded to the injunction issued in the civil action by seeking a declaratory
judgment in US courts that the French orders were unenforceable in the US. While the first
ruling by a Californian District Judge agreed that the French orders violated public policy
as laid down in the First Amendment and were therefore unenforceable by a US court, in
the end Ninth Circuit dismissed the Yahoo case on the basis of six strongly divided opinions
(Yahoo! Inc v La Ligue Contre le Racisme et l’Antisemitisme [2006] [en banc]).
119 In a similar case involving Google in 2006, prosecutors in Brazil sought the assistance
of Orkut, a Google subsidiary providing social networking services in Brazil, with respect to
activities relating to child pornography, incitements to commit crime, neo-Nazism, cruelty to
animals, racism, religious intolerance, homophobia, and xenophobia—all prohibited under
the law of Brazil. When Orkut tried to argue that it did not have the information needed to
identify the participants in those activities, because this was on the servers of its parent
company in the US, a Brazilian judge admonished Google for displaying a ‘profound
disrespect for national sovereignty’ (Chander 296). Apparently, Google maintains a ‘Safe
Server Strategy’ keeping data in the US where it enjoys the protection of the First
Amendment which may be invoked to fend off the enforcement of foreign court orders
supporting the suppression of free flow of information. But in the Brazilian case, Google’s
parent company in California decided to comply when the Brazilian authorities redirected
the subpoena to Google’s head office.
(iv) Internet Freedom as an Economic (Trade Law) Issue

120 Finally, the US also advances Internet freedom as an economic issue, for example,
within the framework of the → World Trade Organization (WTO) under the → General
Agreement on Trade in Services (1994) (‘GATS’). But there is no general category of
Internet services under that agreement. Market access in specific instances depends on
whether the host State has made specific commitments in its respective national schedules.
121 For example, in the China-Publications and Audiovisual Products case, the panel
decided that supplying services online is not a distinct category of services ([Report of the
Panel] [12 August 2009] paras 7.1209, 7.1220). Moreover, in US—Gambling the WTO
Appellate Body ruled that the protection of morals under Art. XIV GATS, which contains
general exceptions to market access obligations, could in principle be invoked to restrict
the freedom of Internet gambling and services, or even to impose a complete ban ([Report
of the Appellate Body] [7 April 2005] para. 373 (D) (iv)).
122 As it currently stands, WTO law does not lend itself easily to advance an argument, for
example, that host States are obliged to respect Art. 19 ICCPR, especially not, as in the
case of China, if the ICCPR has not been ratified. Nevertheless, aspects under which
Internet censorship may be not only a human rights issue, but also a trade law issue, are
conceivable. It might be argued, as in a White Paper circulated by Google in November
2010, that Internet content control measures may, under certain conditions, conflict with
GATS transparency obligations, constitute discriminatory measures and impediments to
market access with respect to the cross-border supply of network, or violate requirements
of independent review of administrative decisions affecting trade in services.
C. Concluding Remarks
123 The traditional notions of information and communication have been shaped primarily
by reference to the press and terrestrial broadcasting. Profound changes in
communications technologies with a global impact, especially the Internet, have challenged
this notion. These changes include the use of satellite communications for direct television
broadcasting and → remote sensing from → outer space. They also include the combination
of computer and communications systems in the form of ‘telematics’, which enormously
advances the capacity for producing, stocking, and circulating information and knowledge
and has led to a huge increase in transborder data flows.
124 The spread of new technologies and the emergence of the Internet as a public network
have led to a discussion of the transformation from a global ‘information society’ to a
‘knowledge society’, while overcoming existing global disparities in this process, and
securing the two pillars of access to information for all and freedom of expression.
Furthermore, the growing use of units of information coded electronically for processing by
one or more digital computers which transfer almost instantaneously or process information
in more than one State has led to competition and often conflict between the two objectives
of the promotion of the free flow of information and the protection of the privacy of the
individual (→ Data, Transboundary Flow, International Protection).
125 The expansion and further development of the Internet offer promising opportunities
for extending the free flow of information, the exchange of ideas, and the individual rights
to freedom of information and communication globally. At the same time, the challenge of
global Internet freedom also creates significant potential for conflicts arising from diverse
views on cultural norms, national security, privacy, human rights, and the appropriate scope
of content control, primarily between open societies and authoritarian regimes, but to some
extent also among liberal democracies.
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Information and Communication,

Freedom of, International

Content type: Encyclopedia entries

1. Developments before World War II

4 The first attempts to regulate the content of international broadcasting (→ Broadcasting,

2. Developments since World War II

7 Art. 19 → Universal Declaration of Human Rights (1948) (‘UDHR’) provides:

B. Current Legal Situation

14 Freedom of broadcasting means that every State is entitled, in principle, to transmit

15 However, customary international law also recognizes the corresponding right of

(b) Direct Television Satellite Broadcasting

2. Freedom of Expression and Information in Human Rights Treaties

22 All of the afore-mentioned treaties guarantee freedom of expression and information in

(a) International Covenant on Civil and Political Rights

(i) Human Rights Committee Draft General Comment No 34

(ii) Basic Concepts and Scope

36 Reporters and human rights activists are specially mentioned:

Journalists are frequently subjected to such threats, intimidation and attacks

is not compatible with paragraph 3, for instance, to invoke treason laws to

40 A special section of the draft General Comment No 34 deals with restrictions on

(b) UN Special Rapporteur

(c) European Convention for the Protection of Human Rights and

(i) Basic Concepts

49 As noted in one recent case by the ECtHR:

Freedom of expression constitutes one of the essential foundations of a democratic

(ii) Margin of Appreciation and Control by the Court

(iii) Right to Receive Information from Abroad

(iv) Council of Europe Instruments

56 Furthermore, freedom of expression as embodied in Art. 10 ECHR is a general principle

(e) American Convention on Human Rights

58 Authorizing the ‘subsequent imposition of liability’, Art. 13 (2) contains a reservation

may not be restricted by indirect methods or means, such as the abuse of

60 In 1997 the → Inter-American Commission on Human Rights (IACommHR) established

3. Selected Other Instruments

as an essential foundation of the Information Society, and as outlined in Article 19 of

4. Internet Freedom and Content Control

(i) Increasing Practice of Control

(ii) Circumvention Measures

(iii) The Great Firewall of China

79 But it also notes that:

that no organization or individual may produce, duplicate, announce or disseminate

(b) International Rules Governing the Internet and its Content

(i) European Regional Level

90 In refreshing words, the explanatory note explains:

92 Following Recommendation Rec (2004) 15 on electronic governance, the 2005

94 Recommendation Rec (2008) 6 of the Committee of Ministers to Member States on

96 The Declaration emphasizes that both users and providers:

(ii) Global Level

100 There is only a rather general statement on possible restrictions:

Any restrictions on the operation of websites, blogs or any other Internet-based,

that the blocking or filtering of information, removing information from sites,

(iii) Internet Content Control

115 The majority opinion concluded:

(iv) Internet Freedom as an Economic (Trade Law) Issue

K Nordenstreng and HI Schiller (eds) National Sovereignty and International

G Malinverni ‘Freedom of Information in the European Convention on Human Rights

P Malanczuk ‘Das Satellitendirektfernsehen und die Vereinten Nationen’ (1984) 44

R Pinto La liberté d’information et d’opinion en droit international (Economia Paris

CM Schenone ‘Jamming the Stations: Is there an International Free Flow of

P Malanczuk ‘Satelliten-Fernerkundung der Erde: politische and rechtliche Aspekte’

EJ Mestmäcker (ed) The Law and Economics of Transborder Telecommunications

GH Gornig Äußerungsfreiheit and Informationsfreiheit als Menschenrechte (Duncker

P Malanczuk ‘Telecommunications Satellites and International Law—