Model Training Materials: Hate Speech, Defamation and National Security Certain classes of information cannot, by their very nature, constitute national security threats. For example, national security laws should not be used against journalists, researchers, activists and others who disseminate information on matters of public concern or be applied to commercial, banking or scientific information.127 Peaceful political speech should also be protected. As noted by the European Court for Human Rights: “[P]olitical ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”. 128 The Human Rights Committee has similarly said that national security concerns cannot be met by “by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights”.129 Finally, it is generally not appropriate to impose restrictions on freedom of expression by civilians in any kind of specialised military or security tribunal, which frequently raise fair trial and due process concerns. Military courts should not try civilians except in limited and exceptional circumstances, such as where the class of individual and offence cannot be handled by normal civilian courts.130 Speech-related crimes rarely if ever meet these criteria. Similarly, intelligence or security agencies should not operate outside the scope of judicial oversight or enjoy blanket exceptions from obtaining judicial authorisation in relation to matters impacting freedom of expression.131 All restrictions on freedom of expression “must be subject to independent judicial oversight”.132 Terrorism Laws and Freedom of Expression States have obligations under international law to take measures to combat terrorism.133 For example, the UN Security Council has called on States to prohibit incitement to terrorism, although notably not under their authority to impose binding obligations on UN Member States.134 Unfortunately, although any such anti-terrorism measures should be exercised in full compliance with human rights law, as affirmed by numerous anti-terrorism UN Security General Comment No. 34, note 43, para. 30. Eğitim ve Bilim Emekçileri Sendikası v. Turkey, 25 September 2012, Application No. 20641/05, para. 70, https://bit.ly/3UjT54O. 129 Mukong v. Cameroon, 10 August 1994, Communication No. 458/1991, para. 9.7, undocs.org/CCPR/C/51/D/458/1991. See also the Johannesburg Principles, note 115, Principle 7. 130 Human Rights Committee, General Comment No. 32, 23 August 2007, para. 22, undocs.org/CCPR/C/GC/32. See also Jared Genser, The UN Working Group on Arbitrary Detention (Cambridge University Press, New York, 2020), p. 363, https://bit.ly/3DV1qVn. 131 Report of the Special Rapporteur on freedom of expression, note 118, para. 59. 132 Special international mandates on freedom of expression, 2016 Joint Declaration on Freedom of Expression and Countering Violent Extremism, para. 1(e), https://bit.ly/3WLrZoJ. 133 UN Security Council Resolution 1373, 28 September 2001, undocs.org/S/RES/1373(2001). 134 UN Security Council Resolution 1624, 14 September 2005, para. 1, https://bit.ly/3FWWB0o. 127 128 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 29