FREEDOM OF OPINION AND FREEDOM OF EXPRESSION: SOME REFLECTIONS ON GENERAL COMMENT NO. 34 OF THE UN HUMAN RIGHTS COMMITTEE

Abstract

The United Nations Human Rights Committee is a body of 18 independent experts (including a member from the Netherlands, Professor Cees Flinterman) who are tasked with monitoring compliance with the provisions of the 1966 International Covenant on Civil and Political Rights (in force 23 March 1976). The Committee deploys four principal activities – periodic examination of State Party reports, interpretation and progressive development of the provisions of the Covenant in the form of General Comments, and adjudication of individual complaints under the Optional Protocol, as well as follow-up procedures. This article analyzes the Committee's second General Comment on Article 19 of the Covenant, which stipulates freedom of opinion and freedom of expression. In 52 paragraphs the General Comment systematically examines, defines and delimits the concepts contained in the three subparagraphs of Article 19, basing itself primarily on the Committee's concluding observations upon examination of State Party reports and on the case-law in response to petitions under the Optional Protocol. The Committee highlights the primacy of freedom of opinion, recognizing that it is crucial for a democratic society that persons have access to truthful, reliable and pluralistic information, including through the internet, in order to develop a personal opinion whose expression must then be protected by law. The Committee notes, however, that whereas it is inadmissible to impose any restrictions on freedom of opinion, there are certain responsibilities that attach to the exercise of freedom of expression, namely the respect of the reputation of others as well as considerations of health, morals and national security. The Committee holds that so-called ‘memory laws’ as well as blasphemy laws are incompatible with Article 19 and that defamation laws must strike a balance between competing rights and interests. Paragraph 49 of the General Comment clearly affirms the right to hold non-conformist historical views and the right to be wrong. While it is not the function of lawyers or judges to establish what historical truth is, Article 20 of the Covenant imposes an obligation on governments to prohibit incitement to racial hatred or violence, the criminalization of which requires narrow definition of the elements of the crime.