Restricting Freedom of Expression: Standards and Principles (Background Paper for Meetings hosted by the UN Special Rapporteur on Freedom of Opinion and Expression)

“It is universally acknowledged that the right to freedom of expression is a foundational human right of the greatest importance. At the same time, it is also universally recognized that it is not an absolute right, and every democracy has developed some system of limitations on freedom of expression. International law does provide for a general three-part test for assessing restrictions on freedom of expression, and this test has been elaborated on in numerous judgments by international courts tasked with oversight of international human rights treaties. National courts, often interpreting constitutional guarantees which are based on or are similar to international guarantees, have also helped elaborate on the precise meaning of the test for restrictions on freedom of expression. Assessing restrictions on freedom of expression, however, is an extremely complex matter. There are several reasons for this, including that the primary guarantee of freedom of expression is itself multifaceted, that the grounds for restricting freedom of expression or interests which restrictions aim to protect are numerous and that the contexts in which the need for restrictions is asserted are almost limitless. This Paper provides an overview of the key issues relating to restrictions on freedom of expression, describing how international and in some cases national courts have approached them. It also highlights some problem areas or issues which remain unclear or which lack sufficient elaboration. For these, it poses questions which might be considered by participants at the two meetings for which the Paper serves as background material.”