Freedom of expression is a universal human right and is one of the primary freedom, an essential precondition to the exercise of other freedoms.  It is the foundation upon which other rights and freedoms arise.[2]  Freedom of expression is an essential component of a democratic society.[3] 

The right to freedom of expression is found in numerous international documents, including: Article 19 of the Universal Declaration of Human Rights (UDHR); Article 19, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR);[4] and Article 10, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention on Human Rights).[5]  Article 19 of the UDHR reads as follows:

“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.”

The African Charter contains two relevant provisions on freedom of expression and freedom to participate in government.[6]  The American Convention article 13.1 guarantees that, “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 other medium of one’s choice.”

Freedom to engage in political debate and criticism of government is an aspect of freedom of expression without which there is no democracy.  In modern democracies it is not only a citizen’s privilege to criticize his/her government it is a citizen’s duty.[7]  Criticizing the official conduct of those who wield governmental power is an integral part of a free and democratic society. (Political expression)

“History as repeatedly demonstrated that the first step taken by totalitarian regimes is to muzzle the media of views and opinions that may be contrary to those of the government.  The vital importance of freedom of expression cannot be overemphasized.”[8]

For this reasons, courts have consistently held that restrictions on freedom of expressions must not hamper the right to participate non-violently in political discourse and to advocate for unpopular causes.  The European Court of Human Rights in the Handyside case affirmed the principle of proportionality:

The Court’s supervisory function obliges it to pay the utmost attention to the principles characterising a “democratic society”.  Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man¼This means amongst other things, that every ‘formality’, condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued. [9]

In balancing the right to freedom of expression with the right to protect reputation, freedom of expression (in the absence of proven malice) must always prevail where the right to criticise and question government is being exercised.  Where the impugned expression is broadly within the context of matters of public interest, including the reputation of a person holding or seeking public office, freedom of expression is protected.

With respect to the broad interpretation of freedom of expression to criticise government or those holding public office, The European Court of Human Rights in Castels v. Spain made the following comments:

“…the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician.  In a democratic system, the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities, but also of the press and public opinion.”[10]

Further, it is a common principle of international law that restrictions or limitations to “a human right [freedom of expression] based upon the reputation of others shall not be used to protect the state and its officials from public opinion or criticism.”

The UDHR also contains a provision regarding protection of reputation.[11]  It is, however, a common principle of international law that restrictions or limitations to “a human right based upon the reputation of others shall not be used to protect the state and its officials from public opinion or criticism.”[12]

This principle is implicit in most declarations and covenants enshrining freedom of speech.  Article 8.2 of the Declaration on Human Rights Defenders imposes upon states the duty to provide legal guarantees for,

 “the right, individually and in association with others, to submit to governmental bodies and agencies and organisations concerned with public affairs, criticism and proposals for improving their functioning and to draw attention to any aspect of their work which may hinder or impede the promotion, protection and realisation of human rights and fundamental freedoms.”[13](underlining added)