of multiparty democracy, democratic principles, and human rights,10 and either can it be used to attack a person, including in the forms of arbitrary arrest, torture, death threats, and murder.11 All such attacks must be the subject of an active and timely investigation; their perpetrators must be prosecuted;12 and adequate reparation must be offered to the victims or, when they have lost their lives, to their representatives.13
Restrictions must be provided for by law; the HRC has extensively considered the concept of “law.” The first of the legitimate reasons for introducing a restriction listed in para. 3 refers to respect for the rights (those recognized in the covenant and in rights-related international law) or the reputation of others (which may refer to other people on an individual basis or as members of a community).14
The second reason is the protection of national security, public order, or public health or morals. It is not compatible with para. 3, for example, to enforce laws to suppress information of legitimate public interest that does not harm national security; to prevent the public from accessing this information; to prosecute journalists, researchers, environmentalists, or defenders of human rights for having disseminated this information;15 or to include in the scope of these laws categories of information such as those related to the commercial sector, banking, and scientific progress.16 For reasons of maintaining public order, in certain circumstances it may be permissible, for example, to regulate the right to deliver a speech in a particular public place17 or to consider whether certain forms of expression constitute contempt of court.
As the HRC indicated in its General Comment No. 22:18
The concept of morals derives from many social, philosophical and religious traditions; consequently, limitations on the freedom to manifest a religion or belief for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.
These limitations must be understood in the context of the universality of human rights and the principle of nondiscrimination, and restrictions must not be excessively broad.
The HRC stated in its General Comment No. 27 that:
restrictive measures must conform to the principle of proportionality …; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.19
The principle of proportionality must also take into account the form of expression in question as well as the medium through which it is disseminated; the covenant affords great importance to uninhibited expression in public debate about public and political figures in a democratic society.20
In this regard, the committee has restated that the scope of this freedom should not be determined by reference to a “margin of appreciation”21 and that, if the committee accepts the applicability of this doctrine, the state party22 must, in any particular case, specifically demonstrate the exact nature of the threat to any of the objectives listed in para. 3 that caused it to restrict freedom of expression.23
The Present and the Future: Soft Law and Challenges Faced by the United Nations in the Defense of Communication Rights
The entire process of recognition and protection of communication rights explained so far has centered on the international order’s classic model of declarations, conventions, and treaties, but the evolution of international law in contexts of permanent change, especially in the field of communication, requires a certain legal flexibility that rigid international law does not usually envisage (Feler 2015, p. 287). This is how the concept of “soft law” appeared. It can be considered to be legal in nature and, though lacking binding force, capable of affecting the way in which classic legal obligations are interpreted or implemented, which therefore means that it has a certain legal relevance (Barberis 1994; Meyer 2009).
The UN and its various agencies have set about “soft law” work through reports, documents, and declarations whose purpose is to establish recommendations, suggestions, directions, advice, and proposals, including ones for lege ferenda. These initiatives seek to influence national and regional legislation based more on auctoritas than on potestas, and based on conviction rather than on imposition.
Examples here are too numerous to include in a study such as this one,24 but the Windhoek Declaration,25 crafted between April 29 and May 3, 1991, and marking World Press Freedom Day may serve as a reference point for the recognition and promotion of communication rights in developing countries. Likewise, the Santiago Declaration on Media Development and Democracy in Latin America and the Caribbean (United Nations 1994), based on UDHR Article 19, affirms that freedom of expression is the cornerstone of democracy and that democracy is a prerequisite for peace and development.
In 1993, the UN Commission on Human Rights created the position of UN special rapporteur for freedom of opinion and expression, whose annual reports have established the stance of this international organization in relation to these freedoms.26
The special rapporteur’s 2015 report27 addressed the use of encryption and anonymity in digital communications, taking the view that there is a need to promote such security systems to avoid any interference or harassment that limits or conditions our freedom of opinion. In the report published on May 11, 2016,28 there is a very interesting reflection on the role played by the private sector in the digital era. The report acknowledges that freedom of opinion and expression, as we currently exercise these, owe a good part of their vitality to the private sector, which has enormous power in the digital space, acting as a gateway to information and as an intermediary for expression. In digital environments, certain important questions about applicable law and the scope of private authority and public regulation cannot be ignored.
This report emphasizes an aspect that I believe is fundamental in the understanding of the UDHR’s and ICCPR’s respective Article 19s: the transmission of messages of any kind (which I will discuss later) “by any type of medium of expression” requires reinterpretation. As I have said elsewhere, the excessive power of large Internet companies is changing29 relationships with users, who in their powers to search for, receive, and disseminate messages are subject to the conditions established by the operators in their “conditions of use.” As Garton Ash (2016, p. 48) has pointed out:
Google may not be a country, but it is a superpower. So are Facebook, Twitter and a few other giant information businesses. They do not have the formal lawmaking authority of sovereign states. Their leaders are not accountable to their users as democratic governments are to voters …. Yet their capacity to enable or limit freedom of information and expression is greater than that of most states. The biggest of the private powers are something like virtual countries.
When it comes to the relationship between freedom of expression and other communication rights, such as access to information, on the one hand and these companies operating in the digital market on the other, this situation gives rise to scenarios that are at the very least tricky. Companies do not always have sufficient procedures for letting users oppose decisions to withdraw content or deactivate an account when they believe that the measure taken by the firm is a mistake or the result of abusive flagging efforts. Where this occurs, a private company is depriving a citizen of exercising his or her right to self-expression, to expression of an opinion, or to the sharing of information with fellow citizens. The idea that nobody should be subject to interference in their holding of opinions, which we find in the respective Article 19s of the UDHR and the ICCPR, is now as closely linked to decisions made in an office in California as it is to those made by a constitutional court.
Related to transparency of international organizations, the 2017 report issued by the UN rapporteur for freedom of expression30 acknowledges that the UN does not have an information-access policy that is applicable to all departments and specialized agencies, and neither has it established ad hoc criteria for responding to information-access requests, a state of affairs that the rapporteur views as unacceptable. This report assesses