When Can the Right to Freedom of Expression be Curtailed?

• Author: Tuttle, Myrna El Fakhry
• Position: Special Report: Freedom of Speech

The right to express our opinions is a crucial element of a democracy. Freedom of expression is a basic characteristic of personal development. It gives us the right to dissent and the right to be heard. We can make our own choices about our basic beliefs by being exposed to different thoughts and opinions (see: Fundamental Freedoms: Freedom of Expression). Freedom of expression has been recognized as essential in international and national laws.

Article 19 of the Universal Declaration of Human Rights states that:

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. Article 19 of the International Covenant on Civil and Political Rights (ICCPR) has similar terms on freedom of expression.

Freedom of expression is also protected in article 10 of the European Convention on Human Rights (ECHR), article 13 of the American Convention on Human Rights and article 9 of the African Charter on Human and Peoples' Rights.

Under international law, Canada is compelled to protect the freedom of expression of its citizens. Section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter) protects "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". Freedom of speech is also stated as a human right and fundamental freedom in the Canadian Bill of Rights, sections 1 (d) and (f).

However, article 19(3) of the ICCPR allows certain restrictions on freedom of expression:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. In addition, article 20(2) of the ICCPR requires states to prohibit "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Thus, many countries--including Canada--have enacted laws that limit certain types of expression, including speech that incites violence and hatred:

In Canada, freedom of expression is fundamental but not absolute, particularly when there are legitimate pressing...