A/HRC/44/49/Add.2 discretion on officials. Secretly adopted restrictions fail this fundamental requirement. 25 The assurance of legality should generally involve the oversight of independent judicial authorities.26 (b) 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. The Human Rights Committee cautions that restrictions to protect “public morals” should not derive “exclusively from a single tradition”, seeking to ensure that the restriction reflects principles of non-discrimination and the universality of rights.27 (c) Necessity and proportionality: States bear the burden of proving a direct and immediate connection between the expression and the threat. They must demonstrate that the restriction actually protects, or is likely to protect, the legitimate State interest at issue. States must also prove that the restriction it seeks to impose is the least intrusive instrument among those that might achieve the same protective function. 28 Where the harm to freedom of expression outweighs the benefits, a restriction to the right cannot be justified. 15. Article 20(1) of the ICCPR requires the legal prohibition of all “propaganda for war,” while Article 20(2) requires States to prohibit by law “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. States are not, however, obligated to criminalize such kinds of expression. The Human Rights Committee emphasized in General Comment 34 that Article 20 and article 19(3) are linked: While article 19(3) permits states to restrict expression, article 20 requires the prohibition by law of certain defined expression (hatred that constitutes incitement).29 Therefore, if expression is to be restricted under article 20, it “must also comply with article 19(3).”30 The previous Special Rapporteur explained that Article 20(2)’s key elements involve (1) “advocacy of hatred,” (2) “advocacy which constitutes incitement,” and (3) incitement that results in discrimination, hostility or violence.31 As explored in the 2019 report to the UN General Assembly on online hate speech, the scope of protection against incitement to violence, discrimination and hostility has expanded over time. Human rights law now provides protection against these forms of incitement beyond the categories of nationality, race or religion.32 16. Prior censorship entails the suppression of expression before it has circulated. Consequently, prior censorship prevents not only the individual whose expression has been censored, but also all of society, from exercising their right to seek and receive the information or ideas.33 The previous Special Rapporteur found that “the prior suppression of any particular expression before it is made public is unacceptable”.34 The Special Rapporteur in the field of cultural rights and the Special Rapporteur on freedom of opinion and expression have recommended that States abolish prior-censorship bodies or systems where they exist and use subsequent imposition of liability only when they meet the narrow conditions provided under article 19 (3) and 20 of the ICCPR. 35 In any event, such liability should be imposed exclusively by a court of law. Classification bodies or procedures – those 25 26 27 28 29 30 31 32 33 34 35 General Comment 34, 25; Report on Encryption and anonymity A/HRC/29/32. General Comment 34, 25. Ibid, ¶32. Ibid, ¶34–35. Ibid 34, ¶34. Ibid, ¶50. General Assembly, Report of the Special Rapporteur on the promotion of the right to freedom of opinion and expression, Frank La Rue on hate speech and incitement to hatred, A/67/357, 7 September 2012. ¶43. Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/74/486, 9 October 2019 (hereinafter “Report on hate speech”). IACtHR, Case of Palamara-Iribarne v. Chile. November 22, 2005. Series C No. 135. 68; IACmHR. Report No. 90/05. Case 12.142. Merits. Alejandra Matus et al. Chile. October 24, 2005. 35. General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression Frank La Rue on the right of the child to freedom of expression, A/69/335, 21 August 2014, 87. Communication to Egypt, OL EGY 9/2015, 19 August 2015. 7