The Right to Research in Africa by Desmond Oriakhogba

Author:Desmond Oriakhogba
Language: eng
Format: epub
ISBN: 9783031332821
Publisher: Springer International Publishing

3.4 The Right to Freedom of Expression

The right to freedom of expression in international human rights law has formed the focus of a plethora of academic literature,96 the review of which is beyond the present scope, and a UN Human Rights Committee (UN HRC) General Comment No. 34.97 Accordingly, Article 19 of the UDHR declares the right of everyone to freedom of expression, which includes the right of access to information framed as the liberty to ‘seek, receive and impart information and ideas through any media and regardless of frontiers’. The right to freedom of expression is further enshrined in Article 19 of the ICCPR, as a legally binding right. Under Article 19(2) of the ICCPR, everyone has the right to freedom of expression, which includes the ‘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’. Under Article 19(3) of the ICCPR, the right imposes ‘special duties and responsibilities’ on its bearers. As such, its exercise may be subject to certain legal restrictions by states which are necessary for the ‘respect of the rights and reputation of others’, and for the ‘protection of national security or of public order […], or of public health or morals’.

According to the UN HRC, the right covers the expression and receipt of every type of information including ‘ideas and opinion capable of transmission to others’. The right to freedom of expressions encompasses activities, such as teaching, artistic and cultural expressions, political discourse, and commentary on personal and public affairs, among others.98 It also covers all forms of expression including spoken and written words, and sign language, and ‘such non-verbal expression as images and objects of art’ disseminated through ‘books, newspapers, pamphlets, posters, banners, dress […] legal submissions’, [and] ‘audio-visual as well as electronic and internet-based modes of expression’.99 Like other human rights, states have an obligation to respect, protect and fulfil the right to freedom of expression under Article 19(2) of the ICCPR. The duty to respect, protect and fulfil the right binds the state, its organs, agencies and semi-state entities. Essentially, states are obligated to not directly and indirectly violate the right. They are also under a duty to ensure that persons are protected from any acts by private entities that would impair the enjoyment of the right. Furthermore, state parties are under a duty to ensure that the right to freedom of expression is given effect in their domestic laws.100

Interestingly, the right of access to information guaranteed by Article 19(2) of the ICCPR covers the information held by public agencies.101 According to the UN HRC, paragraph 2 of Article 19 ‘embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production’. For this purpose, public bodies may be interpreted to include other agencies that are performing public functions.

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