Freedom of speech is the concept of the inherent human right to voice one’s opinion publicly without fear of censorship or punishment. “Speech” is not limited to public speaking and is generally taken to include other forms of expression. The right is preserved in the United Nations Universal Declaration of Human Rights and is granted formal recognition by the laws of most nations. Nonetheless the degree to which the right is upheld in practice varies greatly from one nation to another.
In many nations, particularly those with relatively authoritarian forms of government, overt government censorship is enforced. Censorship has also been claimed to occur in other forms (see propaganda model) and there are different approaches to issues such as hate speech, obscenity, and defamation laws even in countries seen as liberal democracies.
Article III Section 4 of the 1987 Constitution of the Philippines specifies that no law shall be passed abridging the freedom of speech or of expression. Some laws inconsistent with a broad application of this mandate are in force, however.
Certain sections of the Flag and Heraldic Code require particular expressions and prohibit other expressions
Title thirteen of the Revised Penal Code of the Philippines criminalizes libel and slander by act or deed (slander by deed is defined as “any act … which shall cast dishonor, discredit or contempt upon another person.”), providing penalties of fine or imprisonment. In 2012, acting on a complaint by an imprisoned broadcaster who dramatised a newspaper account reporting that a particular politician was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night, the United Nations Commission on Human Rights ruled that the criminalization of libel violates freedom of expression and is inconsistent with Article 19 of the International Covenant on Civil and Political Rights, commenting that “Defamations laws should not … stifle freedom of expression” and that “Penal defamation laws should include defense of truth.”
“If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” – Noam Chomsky
The freedom to express our thoughts is an important part of our individual identity. When we talk and write about our opinions we are contributing ideas and participating in society. Freedom of expression is covered in article 19 of the United Nation’s Universal Declaration of Human Rights: “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”. Freedom of expression is widely acknowledged as a basic human right that should be available to all, playing a crucial role in a fair and open society.
Many countries and organizations place limits on freedom of expression. These limitations can be a way of controlling people. Restricting voting rights, censoring speech and art and outlawing specific religious and political groups are some of the tools governments have used to control public opposition. Even societies that consider themselves free and democratic suppress opposing views. Consider your local newspaper; although you might expect objectivity, if you were to analyze the content, you might not find a variety of informed opinions and critiques. Editorial and news writers may be influenced by their own political views. In some places, reporters are trained to manipulate or omit information that could harm those in power.
Should there be no limits on freedom of expression? If we are entitled to express ourselves freely we must accept that others will express ideas very different from our own. This might include ideas that offend and possibly even hurt us. Hate speech attacks people based upon such distinctions as race, religion and gender. Should we censor ideas that damage and promote cruelty? The content of a book, a song or a film may cross societal lines of
morality and decency. Should we censor art works that are violent, insulting or degrading? These are some of the complex questions you must think about. Feeling intimidated and forced to subscribe to traditional or mainstream beliefs is a violation of your personal freedom. But sometimes authorities set rules and boundaries for good reason. Understanding why the rules exist is more important than automatically obeying them.
Cybercrimes and Freedom of Expression
Despite the view of the United Nations Committee on Human Rights that Philippine criminal libel is contrary to Article 19 of the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression, Congress and President Benigno Aquino III still enacted the Cybercrime Prevention Law which, among other things, added electronic libel as a new criminal offense.
Worse, this new law increased the penalty for cyber libel to prison mayor from the current prison correctional provided under the Revised Penal Code.
This means that electronic libel is now punished with imprisonment from six years and one day to up to 12 years, while those convicted for ordinary libel under the RPC are subject to imprisonment only from six months and one day to four years and two months. And because parole, a means by which a convict may be spared from actual imprisonment may be granted only to those sentenced to serve a prison term for no more than six months and one day, anyone convicted for cyber libel will inevitably serve a prison term.
Since the Philippines leads the rest of the world in terms of Facebook and Twitter usage, this means that unlike ordinary libel complaints which are oftentimes brought against printed newspapers -given the element of publication, any user of these leading social media tools is now liable for prosecution. The fact that an allegedly libelous writing appeared on the Internet is already sufficient to prove the element of publication.
The new Cybercrime law is an outright defiance of the UN Human Rights Committee View in the case of Alexander Adonis vs. Republic of the Philippines.
In that View, the UNHRC declared that Philippine libel law under the RPC contravenes freedom of expression on two counts: one, it is a disproportionate means by which to achieve its avowed goal of protecting the privacy of private persons; and two, because there is an alternative in the form of civil libel, or the payment of damages.
The UN HCR also took the view that our libel in the Philippines, because it does not recognize truth as a defense, is additionally defective on this ground.
While the View of the UNHRC is this instance is non-binding, the Philippines nonetheless is under an obligation to heed it because of the maxim “pacta sundt servanda”, or that treaty obligations must be complied with in good faith. The UN Human Rights Committee Views, since the membership of the body consist of leading experts in human rights, are accepted as authoritative on the issue of states compliance with their obligations under the ICCPR.
Simply put, the view against our libel law is very strong evidence of breach of a state obligation under the ICCPR And instead of heeding the UN’s call to review its existing libel law, Congress and President Aquino appeared to have slammed the body by enacting an even more draconian legislation against cyber libel.
Our constitutional commitment to freedom of expression has long been recognized. Justice Holmes, for instance, wrote: “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 . . . .”
The commitment exists because it is only through freedom of expression that we are able to discern the truth and able to fiscalize despotic regimes: “The freedom to speak one’s mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.
By criminalizing internet libel, government expanded the infringement of freedom of expression even to the realm that has enabled us to give life to the principle of a free market place of ideas- the internet. Prior to this law, it is ironic that the Philippines was even cited by the United Nations for not interfering with the internet. The law is a testament to the reality that despite the overwhelming mandate given to this administration, coupled with its unprecedented public approval ratings, it continues to be insecure and unable to compete in the market place of ideas.
We will see the Aquino administration in court on this one. And we will prevail. For unlike other laws that enjoy the presumption of regularity, this cybercrime law, insofar as it infringes on freedom of expression, will come to court with a very heavy presumption of unconstitutionality.
There can be nothing sadder than suing the son of icons of democracy for infringement into a cherished right.
IMPORTANCE OF FREEDOM OF EXPRESSION
Article 19 of the Universal Declaration on Human Rights (UDHR) guarantees the right to freedom of expression in the following terms: Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The UDHR, as a UN General Assembly resolution, is not directly binding on States. However, parts of it, including Article 19, are widely regarded as having acquired legal force as customary international law since its adoption in 1948.
The International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by over 150 States, including the Philippines, imposes formal legal obligations on State Parties to respect its provisions and elaborates on many of the rights included in the UDHR.
Article 19 of the ICCPR guarantees the right to freedom of expression in terms very similar to those found at Article 19 of the UDHR:
1. Everyone shall have the right to freedom of opinion. 2. 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.
Freedom of expression is also protected in all three regional human rights instruments, by Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights and Article 9 of the African Charter on Human and Peoples’ Rights.
The right to freedom of expression enjoys a prominent status in each of these regional conventions and, although the Philippines cannot be a party to them, the judgments and decisions issued by courts under these regional mechanisms, offer an authoritative interpretation of freedom of expression principles in various different contexts.
Freedom of expression is a key human right, in particular because of its fundamental role in underpinning democracy. At its very first session, in 1946, the UN General Assembly adopted Resolution 59(I) which states: “Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”
As the UN Human Rights Committee has said: “The right to freedom of expression is of paramount importance in any democratic society.”
RESTRICTIONS OF FREEDOM OF EXPRESSION
The right to freedom of expression is not absolute; both international law and most national constitutions recognise that it may be restricted. However, any limitations must remain within strictly defined parameters. Article 19(3) of the ICCPR lays down the conditions which any restriction on freedom of expression must meet: 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.
A similar formulation can be found in the European, American and African regional human rights treaties. These have been interpreted as requiring restrictions to meet a strict three-part test.
International jurisprudence makes it clear that this test presents a high standard which any interference must overcome. The European Court of Human Rights has stated: “Freedom of expression … is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.”
First, the interference must be provided for by law. This requirement will be fulfilled only where the law is accessible and ‘formulated with sufficient precision to enable the citizen to regulate his conduct’.
Second, the interference must pursue a legitimate aim. The list of aims in Article 19(3) of the ICCPR is exclusive in the sense that no other aims are considered to be legitimate as grounds for restricting freedom of expression. Third, the restriction must be necessary to secure one of those aims. The word “necessary” means that there must be a “pressing social need” for the restriction. The reasons given by the State to justify the restriction must be “relevant and sufficient” and the restriction must be proportionate to the aim pursued.
The Constitution of the Philippines, however, does not explicitly provide for restrictions to the right to freedom of expression. The only restriction to the rights to expression and information and press freedom is encapsulated in the provision on the right to privacy.
Article III, Sections 3 of the Constitution states:
(1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
FREEDOM OF EXPRESSION IN THE MEDIA
The guarantee of freedom of expression applies with particular force to the media, including the broadcast media and public service broadcasters. The European Court of Human Rights, for example, has consistently emphasised the “pre-eminent role of the press in a State governed by the rule of law”.
The Inter-American Court of Human Rights has stated: “It is the mass media that make the exercise of freedom of expression a reality.” Media as a whole merit special protection, in part because of their role in making public ‘information and ideas on matters of public interest. Not only does [the press] have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”’.
It may be noted that the obligation to respect freedom of expression lies with States, not with the media per se. However, this obligation does apply to publicly-funded broadcasters. Because of their link to the State, these broadcasters are directly bound by international guarantees of human rights. In addition, publicly-funded broadcasters are in a special position to satisfy the public’s right to know and to guarantee pluralism and access, and it is therefore particularly important that they promote these rights.
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