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.

7 items found, showing 11 - 7

National Security

Author: Laura K. Donoghue
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This article analyses sedition and related laws in the United States of America and the United Kingdom to determine the circumstances under which the interests of the State are secured and the opportunism of terrorist organizations avoided. It argues that the changes in the American or British law that were touted to protect free speech, are more restrictive than is widely understood. The article concludes that the national security exceptions are too broad, and has led to the use of counter-terrorism measures against non-violent opposition.

Laura K. Donoghue, Terrorist Speech and the Future of Free Expression, 27(1) Cardozo Law Review 234 (2005) 

Author: ARTICLE 19
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“The Global Expression Report is a global, data-informed, annual look at freedom of expression worldwide. With the benefit of data and hindsight, we take a look at 2020 – how this fundamental right fared, what the key trends were, and how global events affected its exercise. The Global Expression Report’s metric (the GxR Metric) tracks freedom of expression across the world. In 161 countries, 25 indicators were used to create an overall freedom of expression score for every country, on a scale of 1 to 100 which places it in an expression category. The GxR reflects not only the rights of journalists and civil society but also how much space there is for each of us – as individuals and members of organisations – to express and communicate; how free each and every person is to post online, to march, to research, and to access the information we need to participate in society and hold those with power to account. This report covers expression’s many faces: from street protest to social media posts; from the right to information to the right to express political dissent, organise, offend, or make jokes. It also looks at the right to express without fear of harassment, legal repercussions, or violence.”

ARTICLE 19. “The Global Expression Report 2021: The State of Freedom of Expression around the World”. 2021.

Author: IACmHR, SRFoE Catalina Botero
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“The objective of this publication is to present inter-American jurisprudence that defines the scope and content of this right in a systematic and updated way. Among the most important topics it highlights: the importance, function, and characteristics of the right to freedom of expression, as well as the types of speech protected; the prohibition of censorship and indirect restrictions; the protection of journalists and social communications media; the exercise of freedom of expression by public officials; and freedom of expression in the area of electoral processes.”

OAS, IACmHR, Special Rapporteur for Freedom of Expression, Catalina Botero. The Inter-American Legal Framework Regarding the Right to Freedom of Expression. OEA/Ser.L/V/II. CIDH/RELE/INF. 2/09. 30 December 2009

Author: Aaron Olaniyi Salau
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October 2016 marked the 35th anniversary of the adoption of the African Charter on Human and Peoples’ Rights - the first two decades of which the meaning, normative content and scope of the right of access to information guaranteed by article 9 of the Charter were largely unexplored. However, the implementation bodies of the African Charter subsequently have whittled down challenges posed by the narrow formulation of article 9, its claw-back clause and the undemocratic practices of African regimes in relying on vague and widely-drafted laws to deny access to state-held information on grounds of state security. This article examines the methodologies adopted by the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights to supplement and entrench a substantive right of access to information compatible with international standards in article 9. The article finds that an overhauled article 9 dictates that the right of access to information held by public and private bodies is a fundamental right, indispensable to the health of a democracy and a means of protecting other rights, especially socio-economic rights. The right may in recognised instances be restricted, including on grounds of national security, only as clearly provided by law to serve a legitimate purpose and as necessary in a democratic society. The article proposes that state parties to the African Charter engage with the logic and reasoning of its implementation bodies to adopt measures and align their constitutional frameworks with the fundamental principles of access to information.”

Salau, Aaron Olaniyi. “The right of access to information and national security in the African regional human rights system” African Human Rights Law Journal 17, no. 2 (2017): 367-389

Author: Freemuse
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“In the State of Artistic Freedom report – a research publication produced annually – Freemuse provides an analytical examination of violations to the right to freedom of artistic expression documented through 2020 and present some of the most prevailing restrictions. This report is based on the analyses of 978 incidents where this right was violated, documented in 89 countries and online. In addition to statistical data, Freemuse also utilises qualitative interviews with 70 artists and relevant experts, providing personal experiences, reflections and insights about the limitations put on artistic freedom. Aiming to illustrate varying problems and obstacles artists face in different parts of the world, Freemuse also provides analysis of the state of artistic freedoms in 15 countries: Bangladesh, Belarus, Brazil, China, Cuba, Egypt, India, Iran, Kenya, Kuwait, Nigeria, Russia, Turkey, Uganda, and the United States of America. The report demonstrates that although artistic expression has been under attack by different actors (including political and religious groups, social media platforms and private individuals), different government authorities instigated violations in 60 percent of documented cases. This data illustrates that governments and state-funded bodies remain the biggest threat to artistic expression, as well as that nationalist and populist authorities stay determined to silence varying ways of voicing political dissent.”

Freemuse. “The State of Artistic Freedom 2021”. 2021.

Author: Media Legal Defense Initiative
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"The MLDI Training Manual on Digital Rights and Freedom of Expression Online is designed to assist lawyers represent web-based journalists, bloggers and other online media. It comprises a comprehensive overview of international and comparative law on access to the internet, digital privacy and online data protection as well as specific types of speech-related offences online."

Media Legal Defense Initiative.Training Manual on Digital Rights and Freedom of Expression Online: Litigating digital rights and online freedom of expression in East, West and Southern Africa (2018)

Author: Media Legal Defence Initiative
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"This manual has been produced as a resource material for training workshops on media and freedom of expression law. It contains resources and background material to help trainers prepare and participants to understand the issues being discussed [...] The manual and training presentations are aimed at an audience of lawyers, with experience of litigation, but not necessarily of media, freedom of expression or human rights law. It covers international and comparative law only, and should be supplemented with relevant national law standards for the country in which they are being used.” 

Media Legal Defence Initiative. Training Manual on international and comparative media and freedom of expression law (2013).