A/HRC/44/49
and democracies and fostering good governance. Both bodies highlighted the critical
importance of journalism in the above-mentioned resolutions and affirmed that the same
rights that people have offline must also be protected online, in particular freedom of
expression. The Human Rights Committee emphasized, in paragraph 2 of general comment
No. 34 (2011) on the freedoms of opinion and expression, that freedom of opinion and
freedom of expression are indispensable conditions for the full development of the person
and essential for any society. These principles do not simply evaporate in the face of a
contagion.
11.
These underlying principles are manifest in the International Covenant on Civil and
Political Rights, especially in the guarantee in article 19 of freedom of opinion and
expression. In accordance with article 19 (1), freedom of opinion may not be subject to any
interference. Article 19 (2) robustly defines freedom of expression as one that is
multidirectional (“seek, receive and impart”), unlimited by viewpoint (“information and
ideas of all kinds”), without boundaries (“regardless of frontiers”), and open-ended in form
(“or through any other media”). Article 19 (3) provides narrow grounds on which
Governments may restrict the freedom of expression, requiring that any limitation be
provided by law and be necessary for respect of the rights or reputations of others, or for
the protection of national security or public order, or of public health or morals. That is,
such limitations must meet the tests of necessity and proportionality and be aimed only
towards a legitimate objective. Article 17 provides that no one is to be subjected to arbitrary
or unlawful interference with his or her privacy, family, home or correspondence, nor to
unlawful attacks on his or her honour and reputation.
12.
In the context of a pandemic, the right to freedom of expression also supports
relevant rights found in the International Covenant on Economic, Social and Cultural
Rights. In particular, under article 15 (1) (b) of that Covenant, the States parties recognize
the right of everyone to enjoy the benefits of scientific progress and its applications. States
are obligated to take steps necessary for the diffusion of science, with article 15
emphasizing the importance of respect for the freedom indispensable for scientific research,
which ties directly back, even if implicitly, to the promotion in article 19 of the right to seek
and share information of all kinds regardless of frontiers. The Committee on Economic,
Social and Cultural Rights, in its general comment No. 25 (2020) on science and economic,
social and cultural rights, appropriately emphasizes that the language of article 15 implies,
inter alia, protection and promotion of academic and scientific freedom, including freedom
of expression and freedom to seek, receive and impart scientific information. In other
words, freedom of expression includes the right of individuals to share and gain access to
scientific developments, such as those related to combating the COVID-19 virus, and
involves the respect owed by States to enable such sharing of information. Whether that
scientific information is shared through professional channels, social media or broadcast
and print journalism, human rights law guarantees just this kind of communication
regardless of frontiers.
13.
As noted above, many Governments are seeking to restrict freedom of expression in
the areas of access to information held by public authorities, reporting on public health
data, the sharing of information online and offline, and other areas. On the assumption (for
the moment) that any given restriction is aimed at protecting public health, which is
permitted under article 19 (3), it must still meet the basic conditions of legality and
necessity.
14.
First, it is well established that, under the “provided by law” standard, not only must
the law be clearly set out, but also the scope, meaning and effect of the law must be
sufficiently clear to allow individuals to regulate their actions so as to avoid violation.
Vague laws confer undue discretion on executive authorities, enabling them to violate
individual rights while disingenuously claiming adherence to the law. 7 Mandate holders
have frequently been concerned by overbroad legal definition and vague specification,
particularly with respect to terrorism, extremism and other areas of national security and
7
Human Rights Committee, general comment No. 34, paras. 24–26.
5
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