The Human Rights Committee holds that there shall be no exceptions to the right to hold opinions, whether they are of a “political, scientific, historic, moral or religious nature.”12 In particular, the Committee makes clear that it is unacceptable to criminalise the holding of an opinion: The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of article 19, paragraph 1.13 As we shall see in the following national reports, the Asian states that form part of this study stand in potential violation of this understanding of Article 19, paragraphs 1 and 2. Moreover, the right to freedom of expression encompasses a wide variety of activities, including offensive speech (not falling within the ambit of Article 20, ICCPR),14 and applies to “all forms of audio-visual as well as electronic and internet-based modes of expression.”15 In addition to Article 19, Article 20 of the ICCPR also impacts speech. Article 20 prohibits any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Speech that falls within the ambit of Article 20 (as hate speech) cannot merely be offensive, but must have an intent to cause harm, and be likely to cause harm. That is, for speech to fall within the definition of hate speech, it must have the quality of inciting imminent violence.16 It cannot merely be a statement, but rather a call to violence on any of the above grounds, in order to qualify as hate speech. While restrictions are permissible on the above given grounds, they must also be necessary and proportionate to the aim sought to be achieved, and imposed by law. Where the internet is concerned, the abovementioned report of former Special Rapporteur Frank La Rue gathers importance. La Rue highlights the “unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights.”17 The internet enables individuals not merely to be passive 12 Human Rights Committee. (2011). Op. cit., at para. 9. 13 Ibid. 14 Human Rights Committee. (2000, 18 October). Communication No. 736/97, Ross v. Canada. 15 Human Rights Committee. (2011). Op. cit., at para. 12. 16 Khandhadai, G. (2016). Desecrating Expression: An Account of Freedom of Expression and Religion in Asia. Bytes for All, Pakistan and FORUM-ASIA. https://www.forum-asia.org/uploads/ wp/2016/12/Final_FoER_Report.pdf 17 La Rue, F. (2011). Op. cit. receivers of information, but to be active publishers of knowledge and information, for the internet, as an interactive medium, enables individuals to take active part in the creation and dissemination of information. Moreover, the Human Rights Council has affirmed that offline human rights must be equally protected and guaranteed online. In its 20th session (29 June 2012), the Human Rights Council adopted a resolution which unanimously declared: [T]he same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.18 (Emphasis supplied.) However, it is important to remember that the right to freedom of speech and expression is not absolute. The ICCPR states that the right may be curtailed, if necessary and if provided by law, for the following reasons: For respect of the rights or reputations of others; For the protection of national security or of public order (ordre public), or of public health or morals.19 The ASEAN Human Rights Declaration goes one step further. Its clause on restrictions, Article 8, states: The human rights and fundamental freedoms of every person shall be exercised with due regard to the human rights and fundamental freedoms of others. The exercise of human rights and fundamental freedoms shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition for the human rights and fundamental freedoms of others, and to meet the just requirements of national security, public order, public health, public safety, public morality, as well as the general welfare of the peoples in a democratic society. As the text makes clear, the ASEAN Human Rights Declaration expands the scope of justifications on the basis of which the right to freedom of opinion and expression may be restricted. In addition to the justifications provided in the ICCPR, the ASEAN 18 Human Rights Council. (2012). The promotion, protection and enjoyment of human rights on the Internet. A/HRC/20/L.13. https://daccess-ods.un.org/TMP/3578843.1763649.html 19 Article 19(3), ICCPR. 20 / Unshackling Expression