Conflict of Rights and Interests

Conflict of rights and interests

International human rights law suggests a “balance of rights” approach to assess the legitimacy of state restriction to freedom of expression. The resources on this Module survey the application of this test to various areas of conflict, such as defamation and national security. Readings cover various national practices, and jurisprudence, along with academic critiques.

8 items found, showing 1 - 8
Author: IACmHR
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In October 2000, following debates among different civil society organizations, and in support of the Office of the Special Rapporteur for Freedom of Expression, the Inter-American Commission on Human Rights approved the Declaration of Principles on Freedom of Expression. The Declaration constitutes a basic document for interpreting Article 13 of the American Convention on Human Rights. In light of the importance of these principles, the Commission also published an interpretation of the principles set forth in the Declaration.

OAS, IACmHR. Background and Interpretation of the Declaration of Principles. 108th regular period of sessions. 2-20 October 2000

Author: UNESCO
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The report “provides a global overview of the dynamics characterizing hate speech online and some of the measures that have been adopted to counteract and mitigate it, highlighting good practices that have emerged at the local and global level. It also places particular emphasis on social and nonregulatory mechanism that can help to counter the production, dissemination and impact of hateful messages online.”

Gagliardone, Iginio, et al. Countering online hate speech. Paris: UN, UNESCO, 2015.

Author: Toby Mendel, Centre for Law and Democracy
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"For many  years  now, an apparent  conundrum  has lurked just  beneath the  surface among European jurisdictions.  In  the Common Law countries – namely  the United Kingdom and  Ireland – full court decisions, including  the names of  the parties, are generally accessible  to  the public.  In  the  rest of Europe, governed by  the civil law, however, such decisions are normally published only with the names of the parties redacted. The apparent rationale for the former is the idea of open justice, while in the latter group of countries the idea of personal data protection reigns supreme."

Toby Mendel, Court Decisions in Georgia: How to Negotiate the Minefield Between Access and Respect for Privacy, Centre for Law and Democracy, March 2017.

Author: ARTICLE 19
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"These Principles set out an appropriate balance between the human right to freedom of expression, guaranteed in UN and regional human rights instruments, as well as nearly every national constitution, and the need to protect individual reputations, widely recognised by international human rights instruments and the law in countries around the world. The Principles are based on the premise that, in a democratic society, freedom of expression must be guaranteed and may be subject only to narrowly drawn restrictions which are necessary to protect legitimate interests, including reputations. In particular, they set out standards
of respect for freedom of expression to which legal provisions designed to protect reputations should, at a minimum, conform."

Article 19.Defining Defamation: Principles on Freedom of Expression and Protection of Reputation. London: Article 19, 2017.

Author: Centre for Law and Democracy
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"It is legitimate for states to exempt information whose release would be prejudicial to national security from their disclosure laws. But in order to insure that this exemption is not abused it is important to develop an acceptably narrow definition of what constitutes national security. To this end, the Centre for Law and Democracy has produced a paper examining how national security should be defined in the context of information disclosure. The paper was produced as a contribution to the “Principles on National Security and the Right to Information” currently being developed by the Open Society Initiative."

Centre for Law and Democracy. Defining the Scope of National Security: Issues Paper for the Open Society Justice Initiative National Security Principles Project. May 2011

Author: Edward Carter
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"Government officials in various parts of the world use defamation to silence critics, but defamation liability may curtail freedom of expression on topics of public interest and undermine human rights generally. Article 19 of the International Covenant on Civil and Political Rights guarantees freedom of expression unless a state can show need to protect individual reputation and acts proportionally. In its adjudication of complaints for violations of Article 19, and in its General Comment 34, the United Nations Human Rights Committee has crafted the principle that defamation liability may not be imposed if an erroneous statement about a public official was made in “error but without malice.” Although soft law, General Comment 34 represents the committee's most compelling articulation of the values animating freedom of expression in international human rights law, and chief among the values is the role played by free expression to promote realization of all human rights."

Carter, Edward. “‘Error but without malice,’ in defamation of public officials: The value of free expression in international human rights law”, Communication Law & Policy 21, (June 2016): 301-322


Author: Florence Jaoko
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In 2011 the UN Office of the High Commissioner for Human Rights organized expert workshops on the prohibition of incitement to national, racial or religious hatred. This document is the contribution from Florence Jaoko, Chairperson of the Kenya National Commission on Human Rights, to the workshop held in Nairobi. The paper "examines the legal framework, (international, regional, constitutional and legislative) that address these issues and the standards used to ensure a proper balance we will also examine other institutional frameworks such as policy and mechanisms for redress including judicial interventions. The background information has dealt with various regional mechanisms and other country specific situations; [Then it] deal[s] with the Kenyan Situation in light of international and regional conventions and decisions."

UN OHCHR, Florence Jaoko's contribution to the Expert workshops on the prohibition of incitement to national, racial or religious hatred, 2011 Expert workshops on the prohibition of incitement to national, racial or religious hatred, Workshop for Africa (Nairbi, 6 and 7 April 2011)


Author: Kevin W. Saunders
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"Free Expression and Democracy takes on the assumption that limits on free expression will lead to authoritarianism or at least a weakening of democracy. That hypothesis is tested by an examination of issues involving expression and their treatment in countries included on The Economist's list of fully functioning democracies. Generally speaking, other countries allow prohibitions on hate speech, limits on third-party spending on elections, and the protection of children from media influences seen as harmful. Many ban Holocaust denial and the desecration of national symbols. Yet, these other countries all remain democratic, and most of those considered rank more highly than the United States on the democracy index. This book argues that while there may be other cultural values that call for more expansive protection of expression, that protection need not reach the level present in the United States in order to protect the democratic nature of a country."

Saunders, Kevin W. Free Expression and Democracy: A Comparative Analysis. Cambridge: Cambridge University Press, 2017. doi:10.1017/9781316771129.