This General Comment offers guidelines to States on what the freedoms of opinion and expression mean in a series of current contexts. The Committee places a particular emphasis on explaining that the exceptions to Article 19 could be applied in accordance with the International Covenant on Civil and Political Rights (ICCPR).
The Committee says that the obligation to respect freedom of opinion and expression is binding on every part of the State as a whole (Paragraph 7), which means that it applies also to administrative agencies. At the same time, it draws a link between public and private action in light of the States’ obligation to ensure that citizens are protected from any acts, including by private entities that may impair freedom of opinion and expression (Paragraph 7).
The Committee also interprets Article 19 broadly to cover freedom of opinion (a right with no restriction possible - Paragraph 9), freedom of expression (which covers even the expression considered as deeply offensive - Paragraph 11), its application in the media context (explaining that the public has a corresponding right to receive media output - Paragraph 13), the right to access information (Paragraph 18) and Freedom of Expression within the political rights context (Paragraph 20).
The General Comment explains in detail the scope and jurisprudence surrounding the possible restrictions to the freedom of expression and opinion, as established in Article 19(3) of the ICCPR (Paragraphs 21-35). These restrictions may relate either to (a) the rights and reputation of others, or, (b) to the protection of national security or public order. In particular, the Committee explains how these restrictions should concurrently be: (i) provided by a law that is available to the public, with enough precision to let everyone know what is not permitted (Paragraph 24); and (ii) necessary and proportionate for a legitimate purpose (Paragraph 33), which encompasses the obligation of States to individualize and demonstrate how a threat justifies an action. Regarding the subject matter for establishing restrictions, they could either be to (i) ensure the respect of the rights of others (Paragraph 28), or, (ii) to protect national security or public order (Paragraph 29).
The Committee specifically addresses the issue of electronic information dissemination systems, including internet service providers and search engines (Paragraph 43). In that regard, their General Comment mentions that any restriction to its operation could only be permissible as long as they are compatible with Article 19(3). Therefore, they should be only content-specific and, cannot be overarching bans on the operations of certain sites and systems or be ordered on the basis that they’re critical to the government or their interests.
The summary of this document is part of the report produced on the Stanford Law School Intermediary Liability and Human Rights Policy Practicum and is based on the work of Miguel Morachimo. The full report “The ‘Right to Be Forgotten’ and Blocking Orders under the American Convention: Emerging Issues in Intermediary Liability and Human Rights”, can be accessed here.