A/HRC/44/49 public order concern.8 Human rights courts have also consistently criticized the vagueness of such laws.9 Those standards apply with the same force in the context of public health emergencies. 15. Second, under the necessity principle, when a State invokes a legitimate ground for restriction of freedom of expression, it must establish a direct and immediate connection between the expression and the threat said to exist. 10 It is the State’s obligation to demonstrate necessity, 11 not a complainant’s obligation to demonstrate its failure. The judgment of the European Court of Human Rights – that, to meet the test of necessity, any restriction must be something more than “useful”, “reasonable” or “desirable” – is the correct one.12 Necessity implies proportionality, according to which restrictions must target a specific objective and not unduly intrude upon other rights of targeted persons, and the ensuing interference with third parties’ rights must be limited and justified in the light of the interest supported by the intrusion (A/HRC/29/32, para. 35). The restriction must be the least intrusive instrument among those which might achieve the desired result.13 16. The principles of legality, necessity and proportionality apply across the board; they are not simply discarded in the context of efforts to address the public health threat of COVID-19. To the contrary, they apply with great force because of the extraordinary value that the International Covenant on Civil and Political Rights places on free expression and because they also advance public health policies.14 17. In paragraph 5 of its general comment No. 34, the Human Rights Committee emphasized that it could never become necessary to derogate from the freedom of opinion during a state of emergency. Given the importance of information and freedom of expression to the development of opinion and to the efforts to address the public health crisis, States should also avoid any derogation from their obligations under article 19 of the Covenant. Article 19 (3) already provides sufficient grounds for necessary and proportionate restrictions of article 19 (2) rights, to protect public health. Moreover, in accordance with article 4 of the Covenant, even in the context of a declared public emergency which threatens the life of the nation, measures derogating from a State party’s obligations under the Covenant must be limited to the extent strictly required by the exigencies of the situation and, as under the normal application of article 19, cannot involve discrimination or other violations of other international legal obligations, and they must be 8 9 10 11 12 13 14 6 See, for example, A/71/373, para. 23. See also the following communications, including allegation letters and urgent appeals, from special procedure mandate holders: LAO 1/2014; THA 12/2014; KEN 7/2014; MYS 8/2014; KEN 3/2015; CHN 5/2015; RUS 3/2015; TUR 3/2015; BRA 8/2015; MDA 5/2015; LVA 1/2016; GBR 13/2018. All such communications are available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. See further relevant reports of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, including A/HRC/31/65, A/HRC/37/52 and A/HRC/40/52. See, e.g., the amicus briefs filed in the following cases that were before the European Court of Human Rights: Big Brother Watch and Others v. the United Kingdom, application No. 58170/13, No. 62322/14 and No. 24960/15, and OOO Flavus and four other applications v. Russia, application No. 12468/15, No. 20159/15, No. 23489/15, No. 19074/16 and No. 61919/16. The amicus briefs are available at: www.ohchr.org/Documents/Issues/Expression/Intervention_Big_Brother_Watch_v_UK.pdf and https://freedex.org/wp-content/blogs.dir/2015/files/2018/05/Flavus-OOO-SR-intervention.pdf, respectively. Human Rights Committee, general comment No. 34, para. 35. Ibid. See The Sunday Times v. The United Kingdom, application No. 6538/74, judgment of 26 April 1979, para. 59. Human Rights Committee, general comment No. 34, para. 35. It is instructive to note that the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights has recognized that “there are certain types of speech that receive special protection because of their importance to the exercise of other human rights, or to the consolidation, proper functioning and preservation of democracy”. See The Inter-American Legal Framework regarding the Right to Freedom of Expression (2009), p. 11.