The Freedom of Expression

As everyone is aware at this point, a video posted on YouTube recently set off a firestorm of violence reaching from Libya to Afghanistan. There has been extensive property damage at American and other western diplomatic missions and the murder of diplomatic personnel including the American ambassador to Libya. Following the outbreak of violence, Google (who owns YouTube) decided to block access to the video in certain countries. It did so on an ad hoc basis saying in a press release that the video did not violate its terms of use. The Whitehouse has since requested that Google revisit that decision. At least one of the producers has also been taken in for questioning. This post will look at some of the implications this episode has for the freedom of expression.

Background – Just what is this video anyway?

The video (which I have seen) is purportedly a trailer for a satirical movie about the life of the Prophet Mohammed. It starts with a scene somewhere in the Muslim world of a Christian doctor and his family closing their medical clinic because an angry mob is coming to burn them out. There is then a brief scene where the violence is blamed on Christian extremists (the video clearly shows that the mob was Muslim) as part of further discrimination against Christians. The video then inexplicably shifts to scenes from the sixth century and the life of Mohammed. Each scene is more insulting than the last to the religious sensibilities of many Muslims with references to prostitution, pedophilia, murder and homosexuality. To add insult to injury, the production quality is about what one would expect from a sixth grader with his father’s video camera.

The exact origins of this video are unclear. Did they make the video to incite violence? Was the video a poor artistic attempt at satire, like a very bad imitation of the Monty Python classic, the Life of Brian? Unfortunately we do not know at this point what they were thinking or really who they are. I will assume for the purposes of my analysis that the video was not intentionally designed to incite violence and is instead just in very poor taste.[1]

Apart from the existence of this video, another possible contribution to the recent violence is the work of outside actors who used the video to instigate the attacks on the American embassies.

The Bounds of the Freedom of Expression

The internationally protected right to the freedom of expression is guaranteed in several different human rights treaties.  The right however is not unlimited. For example the International Covenant on Civil and Political Rights provides:

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 rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.[2]

This right, however, includes,

political discourse, commentary on one’s own and on public affairs, canvassing, discussion of human rights, journalism, cultural and artistic expression, teaching, and religious discourse. It may also include commercial advertising. The scope of paragraph 2 embraces even expression that may be regarded as deeply offensive, although such expression may be restricted in accordance with the provisions of article 19, paragraph 3 and article 20. (internal citations omitted)[3]

This article clearly provides that speech injurious to public order can be regulated carrying with it certain penalties or punishments. This includes the limitations of article 20 prohibiting, inter alia, speech promoting war and religious hatred.[4] However, the limitations may not be based on customary or religious law.[5] Furthermore any restriction must be “necessary” and not overbroad or over inclusive.[6] The protection also extends to acts of private organizations.[7]

The European Convention on Human Rights contains a similar provision. This one provides:

1.    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.         The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[8]

The ability to regulate offensive speech under the ECHR appears to be much higher. For example, in 1996 the European Court of Human Rights issued a judgment in Windgrove v. the United Kingdom (application 17419/90) upholding the prior restraint of a sacrilegious film depicting sexual acts between Saint Teresa of Avila and Jesus.[9] Essentially, the court allows for a “margin of appreciation” for member States to decide what protections are necessary to protect special sensitivities in the area of religion.

The American Convention on Human Rights has the most detailed and highly protective provisions on the freedom of expression of all the major international human rights instruments. It provides:

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals.

[…]

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.[10]

This article clearly prohibits any kind of prior restraint, the kind of thing that may be permissible under the European system. The crux of this system is that there may be responsibility for one’s speech only after the fact and under clearly established legal frameworks.

All the international human rights mechanisms provide that speech/expression that incites violence may be prohibited/regulated. This comes either in specific language (such as the American convention) or in references to the ordre public. They also all provide that such regulation/prohibition must come in the form of clear laws in existence before the fact that are no more restrictive than necessary. In the cases of the ICCPR and the American convention, the punishment/regulation cannot be based solely on the fact that the speech/expression is offensive to one or another group.

Google’s Blocking of Access in Certain Countries

After violence erupted in Egypt and Libya, Google decided to block access to the offensive video ostensibly to try and limit the spread of violence. As reported in the New York Times,

Google said it decided to block the video in response to violence that killed four American diplomatic personnel in Libya. The company said its decision was unusual, made because of the exceptional circumstances. Its policy is to remove content only if it is hate speech, violating its terms of service, or if it is responding to valid court orders or government requests. And it said it had determined that under its own guidelines, the video was not hate speech.[11]

It should be clear that the actions of Google fall within international human rights protections. True, YouTube is a private company and is not required to publish any material on the Internet at all. This fact does not mean that a company providing a public service may discriminate in any manner that is chooses. Whether this is seen as a human rights norm directly governing private activity or simply a norm putting an obligation on States to regulate the private activity is not important. The free expression of ideas requires that everyone have equal access to communication outlets.

Was Google’s choice to censor the offending video in Egypt and Libya legitimate? I cannot help but conclude that it was to the extent that the removal is limited in time to try and reduce the violence. Limited action is permissible when it is necessary to protect other protected rights: in this case the right to life. The video was being used to fuel violent protests and the assault of diplomatic premises resulting in the murder of American diplomatic personnel. Others were injured in clashes with the police. Temporarily blocking access to a video in particular countries where violence is ongoing would seem to be reasonable.

The Request to Review the Video

The American government’s request for YouTube to reconsider its decision that the video does not violate the terms of use is more troubling. The Whitehouse asked specifically that the video be removed from the website. As noted, the video is of low quality and offensive. YouTube responded,

We work hard to create a community everyone can enjoy and which also enables people to express different opinions. This can be a challenge because what’s OK in one country can be offensive elsewhere.  This video — which is widely available on the Web — is clearly within our guidelines and so will stay on YouTube.

Google should be applauded for sticking to the principle of free access and diffusion of information.

The government should not be in the business of preventing speech even if it is of little value. This is explicitly recognized in the American convention and the work of the Human Rights Committee. The government should only intervene if a crime has been committed and then only to punish the crime not silence the speech.

The proper response to inaccurate speech, or offensive speech, is explicitly contained in the American convention. Article 14 sets out:

1. Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.

2. The correction or reply shall not in any case remit other legal liabilities that may have been incurred.

3. For the effective protection of honor and reputation, every publisher, and every newspaper, motion picture, radio, and television company, shall have a person responsible who is not protected by immunities or special privileges.

The cure for inaccurate speech is not to cause silence, but more speech. The famous quote by Justice Brandeis is most apropos in this case. He said,

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression.[12]

Can the Authors of the Video Be Held Criminally Liable?

The last question is whether or not the producers of the video should be subject to legal action in the United States (I am focusing on the United States because as far as is publically known, the authors are there). In this instance I believe the intent of the authors is of paramount importance. If the film is merely an extremely bad production in poor taste, I can see there as being little if any sanction for the producers. American jurisprudence holds some suggestion about what would be appropriate in this circumstance.

American jurisprudence contains certain requirements before speech can be punishable. The most famous is that it must present a “clear and present danger”. This language comes from the seminal opinion of Justice Holmes in the World War I era case of Scheck v. United States.[13] The second, developed much later, is that the speech be intended to have its negative effect and is likely to do so.[14]  The speech cannot be punished absent immanent danger of violence.[15] These requirements would appear to also be in line with the requirement of the American convention and the ICCPR.

This is why the facts are incredibly important in this case. If the producers of the video intended to cause violence or fuel unrest in Muslim countries there might be a basis to hold them liable for the effects video. On the other hand, if it was just in extremely poor taste, there was nothing immediate about either the violence or any desire to cause violence that could provide the basis for punishment. There is also the question of whether or not the video has been used by instigators to further their own agenda in the region. If this last possibility were true, it would be more than inappropriate to punish the creators of the film for its effects. It would be as if someone wrote an offensive poem in England that was then used by someone in India to show how the English look down on Indians. The author would have had little or nothing to do with that. And then, outside of insulting material, writings or films that make people uncomfortable or even angry are sometimes what is needed to prompt possitive social change.[16]

Conclusion

Recent violence in Muslim countries over an offensive video produced in the United States is a situation that governments and private actors must have the ability to address in real time. On the other hand, a situation that gets out of control should not be used as an excuse to permanently limit the freedom of expression to only those “safe” expressions of opinion that will not offend anyone. While Google was probably correct to temporarily block access to the video in Egypt and Libya, it would be wrong for YouTube to remove the video as the Whitehouse requested. The American government would also be wrong to punish the producers if they did not intend to incite violence, especially in the case that others used the video to instigate the attacks. The desire to hold someone accountable should not be an excuse to violate the fundamental human right to the freedom of expression.


[1] If the video were designed for the purpose of inciting violence there may be other legal frameworks in which to analysis the situation.

[2] International Covenant on Civil and Political Rights, Article 19.

[3] General Comment No. 34, CCPR/C/GC/34, 12 September 2011, ¶ 11.

[4] International Covenant on Civil and Political Rights, Article 20.

[5] General Comment No. 34, CCPR/C/GC/34, 12 September 2011, ¶ 24.

[6] Ibid. at ¶¶ 33-34.

[7] Ibid. at ¶ 7.

[8] European Convention on Human Rights, Article 10.

[9] Windgrove v. the United Kingdom, application 17419/90, 25 November 1996. Interestingly enough, the video in question has since been released. Although it was only this year, two decades after it was banned. http://www.telegraph.co.uk/culture/film/film-news/9178125/Film-banned-for-blasphemy-to-be-released-after-two-decades.html

[10] American Convention on Human Rights, Article 13.
[11] Claire Cain Miller, As Violence Spreads in Arab World, Google Blocks Access to Inflammatory Video, NY Times, 13 September 2012, available at http://www.nytimes.com/2012/09/14/technology/google-blocks-inflammatory-video-in-egypt-and-libya.htm

[12] Whitney v. California, 274 U.S. 357 (1927), concurring opinion of Justice Brandeis.

[13] 249 U.S. 47 (1919).

[14] Brandenburg v. Ohio, 395 U.S. 444 (1969). Justice Black’s concurrence actually called the application of the “clear and present danger” standard into question.

[15] Terminiello v. Chicago, 337 U.S. 1 (1949).

[16] Ibid.

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2 Comments

Filed under International Human Rights, News and Events

2 responses to “The Freedom of Expression

  1. [4] See Brown v Classification Review Board (1998) 154 ALR 67 at 76–77 for a discussion of the common law’s limited protection of freedom of expression in Australia.

  2. but the level of free expression is still far from that of Western nations. There is no clear correlation between legal and constitutional guarantees of freedom of speech and actual practices among Asian nations.

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