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Report on the promotion and protection of the right to freedom of opinion and expression to the Commission on human rights
United Nations
December 30, 2002

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Executive summary
This report is the tenth report submitted by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression to the Commission on Human Rights and the first report of Mr. Ambeyi Ligabo, appointed as Special Rapporteur on 26 August 2002. The report is submitted pursuant to Commission resolution 2002/48, in which the Commission decided to renew the mandate of the Special Rapporteur for a further three years.

In section I, the report defines the terms of reference and methods of work of the Special Rapporteur. Section II describes the activities of the Special Rapporteur during the past year. It also refers to the activities of the former Special Rapporteur, Mr. Abid Hussain, until 26 July 2002, date of the end of his tenure. Section III contains a discussion of issues relevant to the mandate, including access to information for the purposes of education on and prevention of HIV/AIDS, and the right to freedom of opinion and expression in the context of counter-terrorism measures. It also refers to a number of trends with respect to freedom of opinion and expression that emerged from an analysis of the communications received by the Special Rapporteur over the year. Section IV contains the conclusions and recommendations of the Special Rapporteur.

A summary of communications sent to and received from Governments is contained in addendum 1 to the present report, and a report on the Special Rapporteur’s mission to Equatorial Guinea is contained in addendum 2.

Conclusions and recommendations

• The Special Rapporteur considers that the exercise of the right to freedom of opinion and expression is a clear indicator of the level of protection and respect of all other human rights in a given society. While the Special Rapporteur notes that positive measures are being taken in a number of countries in favour of a greater protection of the right to freedom of opinion and expression (such as the repeal of criminal libel provisions from criminal codes in certain countries), he is still concerned that the trends as identified by his predecessor in his successive reports continue to be a strong preoccupation.

• In particular, the Special Rapporteur is extremely concerned at the fact that the attacks against journalists, including killings, because of their professional activity continue to occur in many countries, most often with impunity. He urges Governments to take all necessary measures to protect journalists from attacks, be they from officials, law enforcement officers, armed groups or terrorists, and to provide an enabling environment for their activities. An end to impunity for the perpetrators of such acts and the conduct of serious investigation into these attacks is, in the view of the Special Rapporteur, the first step towards greater security for journalists.

• In this respect, the Special Rapporteur is of the view that an in-depth study on the issue of the security of journalists, in particular in situations of armed conflicts, based on information from and the experiences of Governments and intergovernmental and non-governmental organizations, is necessary, and he would welcome a request from the Commission on Human Rights to undertake such a study.

• Violations of the right to freedom of opinion and expression may occur in all regions and countries, whatever their system. However, democratic institutions, while not ensuring absolute respect for the right to freedom of opinion and expression, do offer more guarantees for its protection as well as a more enabling environment for its exercise. Freedom of opinion and expression not only benefits from a democratic environment; it also contributes, and is indeed pivotal to the emergence and existence of sound and functioning democratic systems. The Special Rapporteur encourages Governments of emerging democracies to promote and protect freedom of opinion and expression and freedom of the press.
• As regards criminal libel and defamation, the Special Rapporteur is of the view that sanctioning libel and defamation by prison sentences is not proportionate. Furthermore, he is of the view that criminal law is not appropriate for regulating such offences. As stressed in his joint Declaration with the OSCE Representative on freedom of the media and the OAS Special Rappporteur on freedom of expression, "criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, as necessary, with appropriate civil defamation laws".

• With respect to access to information for the purposes of education and prevention of HIV/AIDS, the Special Rapporteur wishes first to underline that the level of protection of human rights in a given country has a direct impact on the spread of the epidemic, and that the realization of human rights, in particular of specific groups such as women, young
• people, men and women working in prostitution, men who have sex with men, migrants, refugees, intravenous drug users and other vulnerable groups, is essential to reduce vulnerability to HIV/AIDS.

• Girls and women, who are increasingly disproportionately affected by HIV/AIDS, should be a priority target of education and information campaigns. These should be coupled with national programmes for the advancement of women towards the full enjoyment of all their rights, including their reproductive rights, promoting gender equality and empowerment.

• The extensive use of the mass media (newspapers, magazines, radio and television stations, including community radios and televisions, etc.) is necessary to ensure the widest coverage of information campaigns. More generally, information and education should be provided through all available and accessible means, such as pamphlets, posters, books, instructions on condom packaging, advertisements on the radio and television, video clips, plays, songs, the Internet, group meetings, assemblies, etc. The Special Rapporteur encourages States to cooperate with the media, NGOs and community-based organizations in this endeavour.

• If preventive education is to be effective, it must occur both through the formal and informal sectors, in schools, targeting young people, who represent half of the newly infected people every year, in the private sector and through communities. Preventive education has to be tailored to the targeted audience, take into account cultural habits and be accessible (e.g. made available in the language of the targeted community; using a medium accessible to all, including illiterate people; etc.).

• While prevention - mainly through information and education - is the most feasible approach to reverse the trend of the HIV/AIDS epidemic in the world, it should be underlined that prevention should not be the only tool used. The effectiveness of prevention is increased when it is used in conjunction with care and treatment - and vice versa - in an enabling environment where the human rights of those living with HIV/AIDS are respected and protected.

• In addition, strong social and political mobilization is necessary at the family, community and national levels in order to provide an effective response to the spread of HIV/AIDS. This requires political will at all levels of Government, a clear vision and leadership, as well as close coordination with and involvement of communities.

• The Special Rapporteur, as indicated above, strongly believes that general respect for and protection of freedom of opinion and expression have a direct impact on the effectiveness of education and information policies, programmes and campaigns for the purpose of HIV/AIDS prevention. He therefore urges Governments to set a framework for the better protection of freedom of opinion and expression and for free flow of information and communications vis-à-vis the general public, as well as specific groups and communities.

• The Special Rapporteur, while recognizing the legitimacy of national security and anti-terrorism legislation in many cases, stresses that these must only be implemented when the "life of the nation" is threatened, in the words of the ICCPR, and that the proportionality between the intended goal and the restriction on human rights and fundamental freedoms must be respected. The Special Rapporteur recommends that in considering the adoption or implementation of measures restricting human rights and fundamental freedoms, in particular the right to freedom of opinion and expression, attention be paid to the principles and conditions set in article 4 (1) of the ICCPR and to the 1995 Johannesburg Principles on National Security, Freedom of Expression and Access to Information (E/CN.4/1996/39, annex), which provide useful guidance in this respect.

• The Special Rapporteur endorses General Assembly resolution 57/219 and highlights in particular its paragraphs 1 and 2 in which the Assembly affirmed that "States must ensure that any measure taken to combat terrorism complies with their obligations under international law, in particular international human rights, refugee and humanitarian law" and encouraged "States, while countering terrorism, to take into account relevant United Nations resolutions and decisions on human rights and to consider the recommendations from special procedures and mechanisms of the Commission on Human Rights and relevant comments and views of United Nations human rights treaty bodies".

• The Special Rapporteur would like to draw the attention of the Commission on Human Rights to the resolution adopted at the UNESCO-sponsored Conference on Terrorism and the Media (Manila, 1-2 May 2002). In particular, the resolution underlines that "the threat of terrorism should not be used as an excuse to impose restrictions on the right to freedom of expression and of the media, or on freedom of information, and specifically on the following rights: to editorial independence; to protect confidential sources of information; to access information held by public bodies; to freedom of movement; and to privacy of communications".

• Finally, the Special Rapporteur wishes to encourage efforts under way, in particular in the forum of the United Nations, to develop a universally valid and comprehensive definition of terrorism and terrorist acts. Such a definition will greatly help the human rights monitoring of measures adopted to combat terrorism, as well as the provision of technical assistance to States when undertaking to adopt such measures.

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