Chapter 8: The right to freedom of opinion and expression
Te tika kia watea te whakaputa whakaaro, korero

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.
(Universal Declaration of Human Rights, Article 19)

1. Introduction — Timatatanga

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What is freedom of expression?

Photo of a woman exercising her right to freedom of expression by speaking at a meeting.

Freedom of expression has a special status as a human right because we need it to promote and protect all human rights. It embraces free speech, the sanctity of an individual’s opinion, a free press, the transmission and receipt of ideas and information, the freedom of expression in art and other forms, the ability to receive ideas from elsewhere, and even the right to silence. We value freedom of expression because of what it means for us and what it helps us to attain (Rishworth, forthcoming).

Freedom of expression is one of a number of mutually supporting rights (including freedom of thought, of association and of assembly, and the right to vote) and is integral to other civil and political rights, such as the right to justice, and the right to take part in public affairs. Equally, the right to freedom of expression impacts on social and cultural rights such as the right to education.

Debate about freedom of expression is both wide reaching and constantly evolving in response to the development of the human mind, technological innovation and a globalised media, community practices and standards, and political and judicial responses. What is more constant is the fundamental idea that freedom of expression is designed to protect and enhance democratic ideals.

Three overlapping arguments have historically been used to advance the right to freedom of expression: the search for truth; democratic self-government; and automony and self-fulfilment.

Search for truth

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The argument based on the search for truth is John Stuart Mill’s idea that open discussion, with competing arguments and ideas, results in the discovery of truth. When all ideas have been freely heard ‘the jury of public opinion will deliver its verdict and pick the version of truth it prefers’ (Hargreaves, 2002, p.302). The metaphor of a ‘market place’ of ideas, which is linked with the search for the truth, has been a powerful influence in applying constitutional guarantees of freedom of expression in many countries.

Democratic self-government

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This argument for freedom of expression sees communication as a conduit for democratic government. As Lord Steyn said: ‘the free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice in the country.’ [1] The democratic rationale has been prominently used in many major court decisions recently in United States, Australia, United Kingdom and New Zealand. For example, cases involving former Prime Minister David Lange in both Australia and New Zealand recognised that the democratic rationale for freedom of expression requires a limitation on defamation laws so that freedom of speech about public and elected officials is not chilled by potential liability. [2]

Autonomy and self-fulfilment

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This argument states that freedom of expression is desirable as an end in itself, not because it assists in truth-finding nor in pursuing democracy, but because it sustains the autonomy and self-fulfilment of individuals in society. This is the reason why art and literature are routinely protected under the umbrella of freedom of expression.

Another argument that supports the right to freedom of expression, though negatively expressed, is that censorship and suppression are ‘themselves intrinsically evil, and will always tend to do more harm than good’ (Hargreaves, 2002, p.306).

Freedom of expression has always been subject to limitations. Each of the arguments for freedom of expression accommodates some restrictions. For example, while the search for truth has permitted tolerance for offensive and unsettling ideas, perjury and false advertising are penalised. There may, too, be restrictions on the ‘time, manner and place’ of expression; for example, the time of screening of adult-only movies on public television. The autonomy argument similarly permits restrictions in the interests of the autonomy of others, and ‘the democratic rationale can permit restrictions in the cause of maintaining a democracy’ (Rishworth, forthcoming).

2. International context — Ki ngā kaupapa o te ao

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Legal source

The most significant legal source of the right to freedom of expression is set out in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which states that:

  1. Everyone shall have the right to hold opinions without interference
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    • a) For respect of the reputation or rights of others;
    • b) For the protection of national security or of public order, or of public health or morals.

What does Article 19 mean?

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Paragraph 1 is a right to which the Covenant permits no exception or restriction and underlines that freedom of opinion is of a different character because it is a private matter. ‘Everyone’ means natural and legal persons, including public servants, teachers, members of the defence forces and so on.

The right to freedom of expression in paragraph 2 is the freedom to communicate opinions, information and ideas without interference, no matter what the content. Content neutrality, the idea that expression should not be restricted because of its message, ideas, subject matter or content, is a bedrock principle. This right protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. The New Zealand High Court says freedom of expression guarantees ‘everyone [the right] to express their thoughts, opinions and beliefs however unpopular, distasteful or contrary to the general opinion or to the particular opinion of others in the community.’ [3]

The dual aspect of freedom of expression acknowledges both individual rights, that no one be arbitrarily restricted in expression, and implies a collective right to receive any information whatsoever and have access to the thoughts expressed by others (Jayawickrama, 2002). Expression need not be in words and may include symbolic expression, including actions and physical conduct (Rishworth, Huscroft, Optican & Mahoney, 2003).

The freedom to seek information means a person has a right of access to information, subject only to prescribed limitations, and the freedom to receive information basically prohibits a Government from restricting that freedom. The freedom to impart or convey opinions to others implies that the right to express includes dissemination, such as by newspapers or the mass media. ‘Information and ideas of all kinds’ embraces pluralism of thought and tolerance for unwelcome as well as new and challenging ideas. The words ‘other media’ include radio, television, the Internet, mobile telephony, theatres and movies, and envisage future media developments.

Paragraph 3 expressly stresses that the exercise of the right to freedom of expression in paragraph 2 carries with it special duties and responsibilities. For this reason certain restrictions on the right are permitted that may relate either to the interests of other persons or to those of the community as a whole.

However, in a General Comment on Article 19 the Office of the United Nations High Commissioner for Human Rights states that, when a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. The necessity for any restrictions must be convincingly established and narrowly interpreted.

Related instruments and international law

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Other international instruments relevant to the right to freedom of expression include The United Nations Convention on the Rights of the Child (UNCROC), which uses almost the same words as the ICCPR, but specifically in relation to children (Article 13). Similarly, the Convention on the Elimination of Racial Discrimination (CERD, Article 5(d)(viii)), also recognises the significance of freedom of expression.

Both these Conventions refer, too, to limitations on the right to freedom of expression, indicating that certain categories of expression such as pornography and speech inciting racial violence are more likely to be subject to reasonable limitations than others, such as political or social speech.

Article 17(e) of UNCROC urges the encouragement of the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind Article 13 and 18 concerning parental responsibilities.

In 2002, New Zealand signed the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which seeks to criminalise the production, dissemination, possession and advertising of child pornography. This was a response to international concern about the growing availability of child pornography on the internet and other evolving technologies.

Racial incitement is specifically addressed in CERD, which requires that States declare as an offence punishable by law all dissemination of ideas based on racial superiority or hatred, and all incitement to racial discrimination, as well as all acts of violence (or incitement to such acts) against any race or group of persons of another colour or ethnic origin.

The Committee on the Elimination of Racial Discrimination (CRD), created by CERD, has said that the prohibition of dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression.

While the significance of the right to freedom of expression has been treated differently in national jurisdictions, there is a broad consensus that emerges from the international human rights framework: while some restrictions on expression (not opinion) are proper, there is a core to freedom of expression that should not be restricted at all (Rishworth, forthcoming). Bills of rights generally affirm these basic principles.

3. New Zealand context — Ki ngā kaupapa o Aotearoa

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The right to freedom of expression is enshrined in the New Zealand Bill of Rights Act 1990 (BoRA), which states in section 14:

Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.

The Court of Appeal in Moonen v Film and Literature Board of Review [4] said that the right is ‘as wide as human thought and imagination’.

Section 5 provides for limits on freedom of expression, as with other rights:

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In the General Comment on Article 19 it was stated that it is ‘the interplay between the principle of freedom of expression and such limitations and restrictions which determines the actual scope of the individual’s rights’ (OHCHR, 1983).

Several pieces of legislation, aimed at promoting racial harmony, defending public morals, enhancing social responsibility, protecting children, and protecting individual privacy and reputation, limit the scope of freedom of expression in New Zealand.

How is it decided that these are ‘reasonable limitations’? The Court of Appeal, in Moonen v Film and Literature Board of Review, interpreted the test in section 5 of the BoRA to mean that the restriction on free speech must be proportionate to the objective sought to be achieved; the restriction must be rationally connected to the objective; and the restriction must impair the right to freedom of expression to the least possible extent. The Court said, ‘a sledge hammer should not be used to crack a nut.’ [5]

Because of the breadth of freedom of expression, the remaining part of the chapter concentrates on the balancing of rights and responsibilities in four major areas: hate expression; censorship and sexually explicit expression; freedom of the press; and privacy. Legislation, policy and practice relating to these areas are referred to. Quotes from stakeholders featured in the chapter are taken from interviews conducted by Dr Susan Fountaine of Massey University.