A/HRC/38/35 acknowledging the interdependence of rights, such as the importance of privacy as a gateway to freedom of expression. 6 Article 19 of the International Covenant on Civil and Political Rights provides globally established rules, ratified by 170 States and echoing the Universal Declaration of Human Rights, guaranteeing “the right to hold opinions without interference” and “the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers” and through any medium.7 A. State obligations 6. Human rights law imposes duties on States to ensure enabling environments for freedom of expression and to protect its exercise. The duty to ensure freedom of expression obligates States to promote, inter alia, media diversity and independence and access to information.8 Additionally, international and regional bodies have urged States to promote universal Internet access. 9 States also have a duty to ensure that private entities do not interfere with the freedoms of opinion and expression. 10 The Guiding Principles on Business and Human Rights, adopted by the Human Rights Council in 2011, emphasize in principle 3 State duties to ensure environments that enable business respect for human rights.11 7. States may not restrict the right to hold opinions without interference. Per article 19 (3) of the Covenant, State limitations on freedom of expression must meet the following well-established conditions: • Legality. Restrictions must be “provided by law”. In particular, they must be adopted by regular legal processes and limit government discretion in a manner that distinguishes between lawful and unlawful expression with “sufficient precision”. Secretly adopted restrictions fail this fundamental requirement.12 The assurance of legality should generally involve the oversight of independent judicial authorities. 13 • Necessity and proportionality. States must demonstrate that the restriction imposes the least burden on the exercise of the right and actually protects, or is likely to protect, the legitimate State interest at issue. States may not merely assert necessity but must demonstrate it, in the adoption of restrictive legislation and the restriction of specific expression.14 • Legitimacy. Any restriction, to be lawful, must protect only those interests enumerated in article 19 (3): the rights or reputations of others, national security or public order, or public health or morals. Restrictions designed to protect the rights of others, for instance, include “human rights as recognized in the Covenant and more generally in international human rights law”. 15 Restrictions to protect rights to privacy, life, due process, association and participation in public affairs, to name a few, would be legitimate when demonstrated to meet the tests of legality and necessity. The Human Rights Committee cautions that restrictions to protect “public 6 7 8 9 10 11 12 13 14 15 4 See A/HRC/29/32, paras. 16−18. See also African Charter on Human and Peoples’ Rights, art. 9; American Convention on Human Rights, art. 13; Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10. See also Centro de Estudios en Libertad de Expresión y Acceso a la Información submission. Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, 3 March 2017, sect. 3. See also Human Rights Committee, general comment No. 34 (2011) on the freedoms of opinion and expression, paras. 18 and 40; A/HRC/29/32, para. 61 and A/HRC/32/38, para. 86. See Human Rights Council, resolution 32/13, para. 12; Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Standards for a Free, Open and Inclusive Internet (2016), para. 18. See general comment No. 34, para. 7. A/HRC/17/31. Ibid. para. 25; A/HRC/29/32. Ibid. See general comment No. 34, para. 27. Ibid., para. 28.