THE QUEST FOR PERMISSIBLE LIMITATIONS ON FREEDOM OF EXPRESSION: PUBLIC ORDER AND PUBLIC MORALITY EXCEPTIONS

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Notes

1. The views expressed in this article are strictly of personal nature and are not necessarily shared by the Qatari Ministry of Foreign Affairs.

2. Throughout this article, the phrase “advocacy of national, racial, or religious hatred which constitutes incitement to discrimination, hostility, or violence,” as it appears in Article 20(2) of the ICCPR, will be used instead of the well-known term “Hate Speech,” which is generally defined in words similar to those used in Article 20(2) of the ICCPR—speech advocating or inciting acts of discrimination or violence toward a group of people or an individual based on hatred for their nationality, race, religion, or any other immutable characteristics. However, the article notes that the two terms are generally used interchangeably. For literature on “Hate Speech” see, for example, Coliver (1992), Catlin (1994), Defeis (1992–1993), Farrior (1996), Fish (1997), and Brink (2001).

3. The author wishes to thank Dr. Nazila Ghanea for her comments on an earlier draft.

4. All the four regional human rights treaties, namely, the European Convention on Human Rights, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights, and the Arab Charter on Human Rights, guarantee the right to freedom of expression, respectively at Articles 10, 9, 13, and 32. These guarantees are largely similar to those embodied in Article 19 of the ICCPR.

5. Article 29 of the UDHR reads:

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

for more on the limitations under Article 29, see Daes (1990) and Opsahl (1992).

6. See UN Human Rights Committee (1983a), General Comment No. 10 on Article 19 of the ICCPR: Freedom of Opinion and Expression, paragraph 1. It should be noted that this General Comment was later replaced by UN Human Rights Committee (2011), General Comment No. 34 (CCPR/c/GC/34).

7. See UN Human Rights Committee (2011, paragraph 21).

8. For a detailed discussion of the drafting history of Article 20, see Bossuyt (1987), Boyle (2001), Nowak (2005), and Farrior (1996).

9. See ARTICLE 19 (2010) and Eltayeb (2010).

10. See UN Human Rights Committee (1983b). General Comment No. 11: Prohibition of propaganda for war and inciting national, racial, or religious hatred (Article. 20).

11. See European Court of Human Rights, Engel and Others v. Netherlands, App. No. 5100/71, paragraph 98 (November 23, 1976).

12. See General Comment 34 (UN Human Rights Committee 2011).

13. See Dahlab V. Switzerland, App. No. 42393/98 (February 15, 2001).

14. See Leyla Sahin v. Turkey, App. No. 44774/98 (June 29, 2004).

15. In fact, in these two cases, the European Court of Human Rights accorded a broad margin of appreciation. For a detailed analysis of the two cases, see Ostrovsky (2005).

16. See General Comment 34 (UN Human Rights Committee 2011).

17. See Muller and Others v. Switzerland, App. No. 10737/84, at paragraph 16 (May 24, 1988).

18. See Prebensen (1998). For a detailed discussion of cases on freedom of expression and public morals, see Bakircioglu (2007).

19. This view is also noted by the European Court of Human Rights in the case of Sunday Times v. United Kingdom, App. No. 6538/74, paragraph 65 (April 26, 1979).

20. See Rabat Plan of Action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility, or Violence at www.ohchr.org/Documents/Issues/Opinion/SeminarRabat/Rabat_draft_outcome.

21. For the text of the resolution, see A/HRC/RES/16/18 at www.ohchr.org/EN/HRBodies/HRC/RegularSessions.

22. For a detailed discussion on the Rabat Plan of Action and Istanbul Process, see Eltayeb (forthcoming). For a detailed analysis of Istanbul Process, see Limon, Ghanea, and Power (2014).

Additional information

Mohamed Saeed M. Eltayeb is a human rights lawyer, scholar, consultant, and a member of the International Consortium on Law and Religion Studies (ICLARS). Dr. Eltayeb has worked, inter alia, at the Netherlands Institute for Human Rights (SIM), International Commission of Jurists (ICJ), Faculty of Law of the University of Khartoum, and the Institute for Women, Gender, and Development Studies of the Ahfad University (Sudan). He currently works as human rights consultant for the Human Rights Department of the Qatari Ministry of Foreign Affairs. Dr. Eltayeb has also served as a visiting researcher at several institutes in Europe and the U.S.