human beings. Recognising the inherent dignity of all beings, the ICCPR and UDHR guarantee, inter alia, the right to freedom of expression,2 the right to privacy,3 the right against advocacy of national, religious or racial hatred (it has been understood as the right against “hate speech”)4 and the right to freedom of religion.5 Moreover, the ICCPR prohibits discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.6 These rights, among all the others guaranteed under the ICCPR, are available to all human beings, regardless of their countries of origin and residence. The right to freedom of opinion and expression is a crucial right in the ICCPR. It is the “foundation stone of every free and democratic society.”7 Without freedom of expression, the full development of the individual is impossible. Moreover, the “marketplace of ideas” aids the pursuit of truth. Without freedom of expression, the autonomy of an individual may be considered curtailed and restrained. The importance of the right led the Human Rights Committee to hold that a general reservation to paragraph 2 of Article 19 of the ICCPR was unacceptable.8 Article 19 of the ICCPR as well as the UDHR guarantees the right to hold opinions without interference and guarantees everyone the right to freedom of expression and the right to receive and impart information, regardless of frontiers. Any limitations placed on this right must meet the standards required and justified by provisions in 2 3 4 5 6 7 8 Article 19, ICCPR: (1) Everyone shall have the right to hold opinions without interference; (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… Article 17, ICCPR: (1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation; (2) Everyone has the right to the protection of the law against such interference or attacks. Article 20, ICCPR: (2) Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. Article 18, ICCPR: (1) Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching; (2) No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice… Article 26, ICCPR. Human Rights Committee. (2011). General comment No. 34, Article 19: Freedoms of opinion and expression. CCPR/C/GC/34. www2. ohchr.org/english/bodies/hrc/docs/gc34.pdf “[A] general reservation to the rights set out in paragraph 2 would be incompatible with the object and purpose of the Covenant.” Ibid., at para. 6. Article 19(3) of the ICCPR. Article 19 of the ICCPR reads: (1) Everyone shall have the right to hold opinions without interference; (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… As the text of the right makes clear, the right to freedom of opinion, speech and expression is available regardless of borders or frontiers. More importantly, it is available through any media of one’s choice. It is this terminology that is crucial when considering freedom of speech online. In addition to the international treaties, several regional charters also guarantee the right to freedom of opinion and expression. In Asia, it is the ASEAN Charter9 and the ASEAN Human Rights Declaration10 that enshrine this right. Vowing to respect and protect “human rights and fundamental freedoms,” the ASEAN Charter incorporates as one of its principles the “respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice.” Article 14 of the Charter states that “ASEAN shall establish an ASEAN human rights body” in accordance with the purposes and principles of the ASEAN Charter. Taking off from this, the ASEAN Intergovernmental Commission on Human Rights was established in 2009, and the ASEAN Human Rights Declaration was unanimously adopted in November 2012. Under Article 23 of the ASEAN Human Rights Declaration: Every person has the right to freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information, whether orally, in writing or through any other medium of that person’s choice. In its General comment No. 34, the Human Rights Committee confirmed the applicability of Article 19 online, equally as it applies offline.11 The General Comment contains the authoritative interpretation of Article 19, including the scope and extent of the right. 9 www.hrlibrary.umn.edu/research/Philippines/ASEAN%20Charter. pdf 10 www.mfa.go.th/asean/contents/files/ other-20121217-165728-100439.pdf 11 “They include all forms of audio-visual as well as electronic and internet-based modes of expression.” Human Rights Committee. (2011). Op cit., at para. 12. International standards / 19