Right Comment for the Right Time: Reaffirming Our Freedom of Expression

By Paula Mendez Keil

The long overdue General Comment 34 on the Freedoms of Opinion and Expression (addressing Art. 19 of the International Covenant on Civil and Political Rights) was recently adopted by the Human Rights Committee, in its 102nd session of late July.

The General Comment (one of the longest, amounting to 52 paragraphs) entailed 2 years of negotiations, totalling roughly 30 hours of discussion between lawyers avidly debating technical issues such as how one defines the principles of necessity and proportionality. Given the 30 year time lapse since the last General Comment on the topic, this text is a far more detailed elaboration of state obligations to respect and protect freedom of expression and the limits within which they can restrict it.

Furthermore, this General Comment provides additional help to guide states, in that it provides an authoritative commentary on the normative base of Art. 19 and tackles (as one of its most recurring and elaborated topics) the Right of Access to Information. General Comment 10 was crucial in stating that freedom of expression included the freedom to seek and receive information in whatever medium, a formulation that has been used in pivotal court cases such as Reyes v. Chile (Inter-American Court of Human Rights, 2006). However, General Comment 34 goes into greater detail and is much more up-to-date and comprehensive, tackling personal data collection, the “right to receive media output”, access to new media and also stating that states should “proactively put in the public domain Government information of public interest.”

Among other issues, laws against blasphemy (paragraph 48), lèse-majesté, historical memory (paragraph 49), contempt of court procedures, and the freedom of expression to incite violence were focal points of the discussion. As if speaking prophetically to the involvement of social media networks in protests and disturbances across North Africa, the Middle East, and even Europe, the Committee accounted for the information revolution of our era and took a strong position in defending media space including new media, and reiterating the importance of a pluralistic and diverse media. For a brief synopsis of the General Comment, see an interview with rapporteur Michael O’Flaherty, conducted by the Centre for Civil and Political Rights.

Although not formally legally binding, General Comments are considered to have a high authority, as they emerge from the very bodies that are tasked under the various treaties to carry out their supervision. Keeping this in mind, the work of the Committee cannot afford to be static in nature and must flow with the ever-changing international climate. More succinctly, in the words of Michael O’Flaherty: “treaties are living documents [and as such] have to be reinterpreted on an ongoing basis to take into account contemporary circumstances.”

About the Author:

Paula Mendez Keil is a 2011 Research Intern at the International Council on Human Rights Policy. She is currently completing a Master’s in International Affairs at the Graduate Institute of International and Development Studies in Geneva.

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