- Bill of rights — Censorship — Freedom of expression — Freedom of the press — Economic, social, and cultural rights
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. Nature and Scope of Censorship
1. Censorship is the most serious interference with freedom of expression. It may amount to the seizure and confiscation of cultural and intellectual products; the prohibition of screenings, exhibitions, and other public events; as well as the forceful closure of websites and other media platforms (see also freedom of the press; right to access to the media; regulation of the media). Censorship is usually imposed on specific outlets of intellectual, cultural, and artistic production of a state (including newspapers, televisions, and the web) and in extreme cases it may amount to absolute bans of a specific form of expression. As pointed out by Lord Bridge in his dissenting opinion in the Spycatcher case, it is ‘the indispensable tool to regulate what the public may and what they may not know’ (Spycatcher (1987) (UK); Observer (1991) 50 (ECtHR)).
1. Definition and Core Meaning
2. The understanding of censorship is generally twofold. Stricto sensu censorship refers to the state’s power to ‘suppress in advance of publication’ (Beman 365; Kommers and Miller 375) as opposed to subsequent imposition of liability and punishment. It involves the seizure, confiscation, or destruction of material prior to circulation, with the aim of preventing information from being disseminated. In this sense, censorship is equivalent to the imposition of prior restraints, ie ‘any attempt by the government—a law passed by the legislature, an order by a judge, any effort by an executive or regulatory agency—to prevent someone from publishing’ (Moore et al 160).
3. Largo sensu censorship is also a generic notion that encompasses all situations where the free flow of information is unduly inhibited. As such it involves all types of stringent restrictions to freedom of speech, including attempts by governmental authorities to ‘limit, directly or indirectly, the information and variety of opinions available to the public’ (Fiss 1218) and ‘suppress opinions of which they disapprove’ (Crowcroft and Cannon 1). This allows for a very broad understanding of censorship, both for the ‘victim’ and the ‘censor’.
4. From an historical/anthropological perspective, ‘there have been trends to expand the ambit of ‘censorship’ to encompass a growing share of practices and structures that shape the form and content of communication’ (Bunn 26) as well as ‘to understand [it] as an autonomous phenomenon, which operates everywhere in the same way, no matter what the context’ (Darnton 228).
2. Delineation of Overlapping Concepts
5. Because of its primary meaning as ‘prior restraint’, censorship is sometimes referred to as ‘prior censorship’. This is the case with Article 13 paragraph 2 of the American Convention on Human Rights (1969) (‘ACHR’), which is the only regional instrument expressly prohibiting censorship, differentiating between ‘prior censorship’ and subsequent imposition of liability. An explicit exception to this prohibition is made in favour of public morality and the protection of childhood in the case of public entertainments (Art. 13 para. 4 ACHR).
6. In its broader sense, censorship is conflated with common restrictions to freedom of expression, differing only in broadness and gravity: restrictions that constitute censorship therefore are usually ‘overbroad’ and take the form of criminal punishment or disproportionate fines. In both situations, censorship has a chilling effect on the right to freedom of expression, violating the right of the public to receive information and ideas (Compulsory Membership (1985) (IACtHR) 30), and discouraging both investigatory journalism and the expression of criticism (Stoll (2006) (ECtHR) 153; Castells (ECtHR) (1992) 48). The Supreme Court of the United States had the opportunity to elaborate on this point in the early 1930s in the leading case of Near, decided in 1931 and concerning dissemination of ‘scandalous and defamatory’ accusations of the Minnesota police and other public officials by the Minneapolis paper Saturday Press. The Court largely referred to the English philosopher Blackstone, affirming that, contrary to actions for libel, prior restraint imposed by virtue of a statute is an infringement of free speech (Near (1931) (US); Moore et al 166).
7. In the European context, the European Court of Human Rights (ECtHR) has several times reiterated the importance of freedom of expression in democratic societies, the role of the press as a ‘watchdog’, and the right of the public to be informed (Sunday Times (ECtHR) (1979) 25), and highlighted that ‘prior restraints on the activities of journalists call for the most careful scrutiny on its part and are justified only in exceptional circumstances’ (Observer 60; Cumpănă (2004) 128).
8. Self-censorship, although falling a priori outside the scope of judicial scrutiny, is the primary by-product of censorship and may be the result of such stringent laws and punishments. This is defined as ‘the exercise of control over what one says and does, especially to avoid castigation’ (Oxford Living Dictionaries). Laws on the authority of the judiciary, such as the English law on the ‘contempt of court’ that give the authorities discretion to grant the plaintiffs ‘interlocutory [ie temporary] injunctions’ (Sunday Times; Observer) may be tantamount to self-censorship, including in matters of serious public concern (Observer—Judge Morenilla partly dissenting para. 9).
3. Relevance of International Standards to Constitutional Practice
9. Censorship, and its consequences on civil liberties, is a matter of concern not only for national constitutions but also for international human rights law. The International Covenant on Civil and Political Rights (1966) (‘ICCPR’) does not contain any express prohibitions of censorship or prior restraints. It is deduced however that the latter constitute a breach of the right to ‘hold opinions without interference’ (Art. 19 para. 1) and ‘the [collective] freedom to seek, receive and impart information and ideas’ (Art. 19 para. 2). In addition, the United Nations Human Rights Committee (‘HRComm’) and the Committee on Economic, Social and Cultural Rights (CESCR) have been proactive in clarifying that ‘the free communication of information and ideas about public and political issues . . . implies [that] a free press and other media are able to comment on public issues without censorship or restraint and to inform public opinion’ (HRComm (2011) para. 13), and that the freedom ‘to create, individually, in association with others, or within a community or group . . . implies that states parties must abolish censorship of cultural activities in the arts and other forms of expression, if any’ (Committee on Economic, Social and Cultural Rights (CESCR) (2009) para. 48).
10. Article 20 of the ICCPR prohibits hate speech and propaganda of war, while Article 4(a) of the International Convention on the Elimination of All Forms of Racial Discrimination prohibits ‘all dissemination of ideas based on racial superiority or hatred’ as well as any ‘incitement to racial discrimination’ and ‘all acts of violence or incitement to such acts’, imposing upon states an obligation to declare these offences punishable by law. Subsequently, several states have adopted laws that incorporate these international obligations into domestic legislation. In the United Kingdom (‘UK’), for example, it is an offence to stir hatred on either racial or religious grounds by means of publications (as well as of theatrical performances and broadcasting), while a police officer ‘may arrest without warrant anyone he reasonably suspects is committing [this offence]’ and courts have the power to order forfeiture of any relevant written material or recording (Racial and Religious Hatred Act 2006, Sections 29A-I (UK), as further explained in the Venice Commission Report 308).
4. Censorship Practices
11. A spectrum of censorship practices exists. Most commonly, this spectrum involves the imposition of prior restraints by law (including emergency counter-terrorism legislation that impose blanket limitations on the media; types and effects of emergency) or judicial orders. In extreme cases, the authors of the offence may be criminally punished, imprisoned, and/or subject to physical violence.
12. Censorship may be equally exercised by official classification committees or other public bodies that have the constitutional power to control freedom of information, the media, and the arts. Examples include the British Board of Film Classification (created by the British Cinematography Act in 1909) and the French Commission de Classification that are typically mandated to control the information and entertainment available to the public, primarily in the view of protecting childhood and morals. The availability of a remedy against any negative classification decision is a crucial factor for the consideration of a restriction as censorship. A negative decision of classification by such public body may be challenged by way of judicial review, and consequently be subject to human rights bodies’ supervision under freedom of expression provisions. In the context of the European system for human rights protection, in particular, the absence of an effective remedy may give rise to a claim under Article 13 ECHR (‘effective remedy before a national authority’). In some cases however, as in the case of the Greek National Radio and Television Council, classification bodies impose excessive fines and administrative sanctions. By way of example, in a case concerning the broadcasting of a TV scene featuring a gay kiss, the national television channel was imposed a fine of 100,000 euros. Its decision was challenged before the first instance administrative courts and ultimately, the Greek Supreme Administrative Court annulled the fine, hailing artistic freedom as well as the freedom to express one’s sexual preferences (Gay Kiss (2006) para. 4 (Gr)). In other cases, however, judicial review mechanisms against the decisions of national classification boards are either unavailable or ineffective.
13. In India, for instance, the decisions of the Film Certification Appellate Tribunal (‘FCAT’), ie the body deciding awarding screening visas, can be challenged only in theory before first instance courts. In practice, this never happens because of ‘the high cost of litigation, delays, and the low success rate of applicants’ (Banerjee 561). In another example, the Zimbabwean Board of Censors, established under the 1967 Censorship and Entertainment Control Act, has extremely broad powers and unless there is a question of law that may be referred to the Supreme Court, its decisions cannot be challenged before civil courts (Patel 58).
14. Censorship, in addition, may be exercised by private parties. This includes cyber-censorship and Internet filtering, through ‘notice and take-down’ systems. Such practices are generally considered controversial (Druzin and Li 386, 403; Hamann and Ruiz Fabri; Penney 743). Several documents issued by international and regional bodies provide guidance on their limits. The Council of Europe (‘CoE’) ‘Declaration on freedom of communication on the Internet’ for instance, provides inter alia that ‘public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers’, although this ‘does not prevent the installation of filters for the protection of minors’ and that ‘provided that the safeguards of Art. 10, para. 2, of the [ECHR] are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality’ (Principle 3). Online providers, however, may be liable for the information published on their pages, for instance when personal information appears on freely accessible pages (Google Spain (2014) (CJEU)). In an Article 10 case concerning anonymous comments published on the webpage of the largest Estonian news portal, the ECtHR found that ‘a large news portal’s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence—the issue in the present case—can by no means be equated to ‘private censorship’ (Delfi (2015) para. 157 (ECtHR)).
5. Purposes of Censorship
15. The actual or real reasons that states practice censorship are difficult to discern: they may be intertwined or brought forward only as official justifications. This happens because states find it easier to justify censorship on the grounds of the maintenance of public order, incitement to hatred, or other clauses that may be used in reality to silence dissident voices and minimize accountability of governors and public officials (Kaye 12). The variety of purposes concerning censorship therefore may encompass a number of different interests, including territorial integrity and national security; public safety and the prevention of crime; the protection of health; the protection of public morals and a state’s official religion; persona rights, honour, and the rights of others; the impartiality of the judiciary; the protection of childhood; and the prohibition of hate speech and incitement to hatred. Most of these grounds are found in international and regional human rights treaties as legitimate restrictions to freedom of expression, including the ICCPR (Art. 19 para. 3), the ECHR (Art. 10 para. 3), and the ACHR (Art. 13 para. 3). The scope of these restrictions, however, is usually the object of fierce disagreements among national judges, typically varying from one state to another. By way of illustration, in the 1990s, the district court of Ohio, US, found that the seizure of Robert Mapplethorpe’s photographs with sexually explicit material was unconstitutional (City of Cincinnati v Contemporary Arts Center (1990) (US)), while, in a case concerning the seizure of a museum catalogue containing copies of the same artist’s works, the Supreme Court of Japan (Saikô saibansho) by five votes to four decided that seizure of the catalogue by the Japanese customs authorities was legitimate (Asai (2008) (Jap); Obata 526).
16. In the context of the war against terror, a number of Western states have adopted anti-terrorism laws to facilitate both censorship and surveillance (Reporters without Borders (2015) 3–4). France, for instance, in 2013 adopted the Military Programming Law that allows authorities to order ex officio surveillance and censorship of websites for the purpose of national security or for combatting terrorism (Reporters without Borders (2015) 3–4; Penney) and in 2015 adopted the Intelligence Bill, facilitating ‘extra-judicial surveillance’ (Tréguer) and allowing the removal of websites promoting terrorism (and child pornography) with no prior court order; Japan has recently adapted a state secrecy law as well as an anti-conspiracy law (Fackler; McCurry); and the UK has enacted legislation in 2016 according to which any information potentially related to terrorism requires prior authorization by the police.
17. Prior restraints that ban hate speech have been interpreted even more rigidly in view of eliminating online incitement to hatred (CoE 2017). Specifically within the European Union (‘EU’), information technology companies and online platforms are entitled to exercise filtering of online content that incites hatred (EU Code of Conduct; EU Framework Decision; CoE (1997)). Similar exceptions apply to child pornography. The EU Directive on ‘Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography’ in particular allows EU member states to ‘block access to web pages containing or disseminating child pornography towards Internet users within their territory’ (Art. 2).
18. Some European states (eg Belgium, France, Switzerland, Austria) have also enacted legislation on negationism and the denial (or distortion) of crimes against humanity, as well as Holocaust denial. Such laws have been typically considered by human rights bodies to be valid restrictions to freedom of expression and of the press, including in the form of prior restraints (Venice Commission Report 20; Wachsmann 595; Faurisson (UN HRComm) (1998)). In the European context, the ECtHR has clarified that the legitimacy of the ‘exception’ of negationism does not apply equally to all cases of denial of historical facts (Lehideux (ECtHR) (1998)). The seizure of a book on Holocaust denial by the French authorities, for instance, has been considered by the Court to be legitimate, as Holocaust denial falls outside the protective scope of Article 10 of the Convention (Garaudy (ECtHR) (2003), while the initiation of criminal proceedings for publicly denying the existence of the Armenian genocide has been considered to be a breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Perinçek (ECtHR) (2015). In case of differences in legislation among the various domestic orders, questions related to conflicts of laws may arise. By way of illustration, when a French group of individuals sued Yahoo! for allowing online sale of Nazi memorabilia, the French courts found the California-based company in breach of French anti-negationism laws (allowing censorship of web pages for users located in France), whereas the competent United States (‘US’) district court found the prohibition unconstitutional (and therefore the judgement unenforceable in the US) (LICRA (Fr) (2000); Van Houweling 697; Muir-Watt 673; Hamann and Ruiz-Fabri 488).
B. Comparative Analysis
1. Evolution of the Principle of Censorship Prohibition
19. The principle of censorship prohibition is of recent origin. It has emerged along with the emergence of individual guarantees for the fulfilment of the freedom of expression. Prior to that, censorship was the rule rather than the exception. Even in the Athenian democracy of the 5th century BCE, ‘between 440 and 437 there were formal restrictions on ridicule in theatrical comedy’; ‘Phrynichus got into trouble . . . for putting on a tragedy dealing with a sensitive political topic’; ‘Anaxagoras was prosecuted in the courts for . . . impiety’; ‘Alcibiades and others were punished severely for profaning the Eleusinian mysteries’ and; ‘the reasons for Socrates’ execution in 399 are still disputed’ (Hornblower 145; Roberts 1; Moore 6). The word ‘censorship’ itself is rooted in the powers of the ‘censors’ in ancient Rome, who along with their other duties in relation to the census ‘exercised a supervision of the morals of the community’ (Hornblower, 145; Roberts 1; Moore 6). Yet, the most well-known censor in Western European history is arguably the Holy Inquisition: its victims included scientists, writers, and artists, such as Jean d’Arc (1431), Thomas More (1535), Veronese (1573), and Galileo (1633). Other well-known historic examples include the licensing regime in England under Charles I, Cromwell, and the Restoration (Crowcroft and Cannon); the political persecution of French caricaturists under the French ‘ancien régime’ (Clapp 251; Goldstein 26; Geipel 12; Keane 848); the cultural dictatorship of the Soviet Union (Lehmann-Haupt 219; Gamboni 51); the confiscation of all ‘degenerate art’ during Nazi Germany (Gay 48); the seizure of ‘subversive propaganda’ during the Cold War (1947–91) (including controlling imports) (Kommers and Miller 376); and telegraph and submarine cable cutting during the Second World War (Penney 715–8). Less well-known illustrations include the melting down of statues under the French regime of Vichy (Gamboni 46); the war against idols in Mexico (Bantjes, 43); the maintenance of a ‘formal blacklist of alien composers’ by the BBC during the Second World War (Robert 514); the persecution of artists during the Franco regime in Spain (Jones 872ff); the banning of books, films, and movies under the military dictators of the Southern Cone (Chile, Argentina, Peru, Guatemala, Ecuador, Suriname) (Mason, 395; Brett 1; Salwen and Garrison, 12; Power 468); and the need to ban ‘un-American’ material and communist propaganda during the Cold War (Lockhart 708).
20. In some instances, press and cartoon censorship were abolished at different times: in France for instance, the press was formally never subject to prior restraint (although Napoleon suppressed the majority of political newspapers and passed a degree ordering ‘every book that was currently for sale to be submitted to a Commission of Revision’); censorship in relation to caricature was abolished only in 1891 (Goldstein 29); and cinematographic censorship was equally abolished in 1944 (following the French Ordinance of 27 June 1944 concerning the ‘abolition of cinematographic censorship in the metropolitan territory’). Likewise, Russia abolished prior restraint in print in 1865, but maintained it with respect to caricatures until the 1920s (Goldstein 29); and in the UK, theatre censorship was abolished in 1968, yet even to the present day ‘the Home Secretary has powers to intervene in BBC radio and television programmes, and the Independent Broadcasting Authority monitors commercial radio and television, albeit its interventions are infrequent and gentle’ (Crowcroft and Cannon). Likewise, the European colonies maintained different legal regimes for the press and the arts in the motherland and the colonies. Hence, for instance, while in the UK newspaper censorship was formally abolished, in British colonies draconian laws were in force. In British India, in particular, both the press and the arts were subject to prior censorship by virtue of the 1877 Vernacular Press Act (India) that prohibited sedition and subjected newspapers to prior restraints. Laws banning sedition and public officials’ defamation were also in place, as illustrated by the case of Bengali poet Mukunda Lal Das for sedition after a tour of theatre performances mocking public officials (Darnton 134; Pinney 56).
2. Constitutional Traditions
(a) The Prohibition of Censorship in the US
21. The US grants an extremely high threshold to the freedom of speech by virtue of the First Amendment of its Constitution (Constitution of the United States of America: September 17, 1787 (as Amended to May 7, 1992) (US), Amendment I, with several cases following the findings of the aforementioned Near case (Near; Moore et al 164). In a case decided in 1963 concerning ‘informal’ requests of the authorities to ban certain publications, it held that ‘any system of prior restraint holds a heavy presumption against its constitutional validity’ (Bantam Books (1963) (US); Moore et al 168); in Grove Press, decided a year later, the US Supreme Court by five votes to four found that the Florida Appeal court had to review the decision that banned publication of Henry Miller’s Tropic of Cancer on the grounds of obscenity (Grove Press (1964) (US); Katz 209); while in a 1976 case concerning media coverage of criminal trials, prior restraint was labelled by the US Supreme Court as ‘the most stringent and least tolerable infringement of First Amendment rights’ (Nebraska (1976) (US); Moore et al 160). In addition, according to the US Supreme Court, restrictions against the First Amendment should never be vague or ‘overbroad’ in nature, while negative obligations accompanying the principle of prohibition of censorship include content-neutrality (Cohen (1971) (US); Lewis 3).
22. These affirmations however do not entail that the prohibition of imposing prior restraints is absolute. The Supreme Court has accepted that prior restraint may be appropriate in exceptional circumstances, such as ‘the publication of sailing dates of transports or the movement and location of troops’ when a nation is at war (Near 716) or the making of nuclear weapons (US v Progressive (1979) (US)), while in the New York Times case, concerning disclosure of sensitive state department material challenging US policies and decisions adopted during the Vietnam War (Vietnam) (the so called ‘Pentagon Papers’), prior restraint was held to be unconstitutional only because the Government failed to prove its justification (New York Times (1971) (US); Moore et al 168).
23. In addition, the protection afforded by the First Amendment has typically been accompanied by exceptions, including for the protection of morals and public decency (White 807). Throughout the years, several tests have been established by the US Supreme Court that curtail the broad protection afforded to speech by the First Amendment. These include typically the ‘obscenity’ test (Miller (1973) (US); Roth (1957) (US); Cohen-Almagor 170; Krotoszynski; Katz 209); the ‘imminent violence’ test (Brandenburg); the ‘fighting words’ test (Chaplinsky (1942) (US)); as well as child pornography (Ferber (1982) (US)). In the Pentagon Papers case, dissident Justice Stewart found that prior censorship is justified when a publication poses the threat of ‘direct, immediate and irreparable harm’ to the nation and its people (New York Times; Moore et al 174). On matters related to blasphemy and the offence of religious sensibilities, the US Supreme Court has held a unique position, consistently dissociating law and religion. In a case concerning Rossellini’s film ‘The Miracle’, which recites the story of a shepherdess who becomes pregnant by a vagabond, the Supreme Court stated famously that ‘it is not the business of government in [the American] nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures’ (Burstyn (1952) (US)). Even on hate speech and incitement to hatred, the Supreme Court has typically maintained a lax approach, considering that the First Amendment encompasses even hateful expression (Skokie (1977) (US); RAV (1992) (US)).
24. More recently, and in relation to the Internet in particular, the US Supreme Court’s views have strengthened the protection afforded by the First Amendment and underlined the importance of the Internet as a ‘free marketplace of ideas’. By way of illustration, in its first ruling on online-pornography in the early 1990s, the Court ruled that the ‘Communications Decency Act’ (adopted in several states to inhibit child pornography and protect minors from indecent material) was vague, and by implication unconstitutional (Reno (1997) (US) 845). Similarly, the Court has stricken down anti-child pornography provisions, finding that they ‘prohibit a substantial amount of protected expression’ and stipulating that ‘the Constitution gives significant protection from overbroad laws that chill speech within the First Amendment’s vast and privileged sphere’ (Ashcroft (2002) (US) 244). At the same time, in 2011 it upheld the right of a church congregation to advertise slogans such as ‘Pope in hell’ and ‘priests rape boys’ in the public sideway next to the funeral of a former US marine soldier sent to Iraq (Snyder (2011) (US)).
25. In many other instances, however, censorship in the US takes place indirectly. On the one hand, the Motion Picture Association of America (‘MPAA’), albeit not a governmental body or a ‘public agency’, exercises tremendous power. The MPAA functions on the basis of membership criteria and has the power to classify or even ban films depending on audience-suitability. Most films produced by MPAA members therefore are ‘submitted to the “Code and Rating Administration” . . . for approval and rating’ (Bates 623). The MPAA has been extensively criticized for exercising a ‘disguised form of censorship’ as well as ‘cultural manipulation’, while appeals against it are only seldom reversed (Bates 656; Septimus 69). On the other hand, US states have discretion on the funding of public art and the media. A typical example is the US National Endowment for the Arts (‘NEA’), which prohibits the funding of immoral forms of arts which ‘taken as a whole have no serious literary, artistic, political, or scientific value’ (Hamilton 110; Kaminski 2517). The decisions of the NEA have been challenged before circuit courts and occasionally the Supreme Court, especially during the so-called ‘cultural wars’ in the beginning of the 1990s. These have amounted to the decreased funding of artists such as Robert Mapplethorpe and Karen Finley (Finley (1998) (US)). Since then, the debate on artistic freedom (freedom of art) has taken a different hue, focusing on public morals and the legitimacy of publicly funded arts (Atkins 3; Mintcheva 255; Merryman 303ff; O’Neil 187ff).
(b) The Prohibition of Censorship in Other Civil and Common Law Traditions
(i) European Traditions
26. Most contemporary constitutions contain affirmations of the prohibition of censorship. Article 5 of the German Basic Law, for instance, stipulates that ‘freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed’ and that ‘there shall be no censorship’ (Art. 5 para. 1, Basic Law of the Federal Republic of Germany: May 23, 1949 (as Amended to July 11, 2012) (Ger)); Kommers and Miller 376). Likewise, the Austrian Basic Law on the General Rights of Nationals provides that ‘the press may be neither subjected to censorship nor restricted by the licensing system’ (Art. 13 para. 2, Basic Law of December 21, 1867 on the General Rights of Nationals in the Kingdom and Länder represented by the Council of the Realm (as amended in 1994) (Austria)). Spain’s Constitution provides for the freedom of literary, artistic, scientific and technical production that ‘may not be restricted by any form of prior censorship’ (Art. 20 para. 2, Constitution of the Kingdom of Spain: December 6, 1978 (as Amended to September 27, 2011) (Spain)) along with guarantees for pluralism (Art. 20 para. 3). And the French Constitution also ‘guarantees the pluralist expressions of opinions’ (Art. 4), specifying that ‘no one should be bothered on account of his opinions … provided their presentation does not upset the public order’ (Art. 10, Constitution of the French Republic: September 28, 1958 (as Amended to July 23, 2008) (Fr)).
27. These same provisions, however, are accompanied by numerous limitations. The German Constitution, for instance, goes on to explain that ‘these rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour’ (Art. 5 para. 2), and in a case decided in 1969 concerning a daily East-German newspaper that was thought to propagate communist ideas, the German Federal Constitutional Court underlined that the right to express opinions is different from the right to receive information, and further clarified that the absence of censorship embraces the rule concerning the absence of prior restraint. Even so, however, a publication may be seized if it contains subversive propaganda (Leipzig Daily (1969) (Ger); Kommers and Miller 375). Likewise, the Austrian Basic Law elucidates that the right to ‘freely express one’s opinion’ should be exercised ‘within the limits of the law’ (Art. 13. para. 1); the Constitution of Spain of 1978 (as amended in 2001) (Spain) follows suit, indicating that ‘these freedoms are limited by respect for the rights recognized in this Part [of the constitution], by the legal provisions implementing it, and especially by the right to honour, to privacy, to one’s image and to the protection of youth and childhood’ (Art. 20 para. 4); while even the French Declaration of the Rights of Man and of the Citizen (1789) (to which the French Constitution refers) states that the right ‘not to be disturbed on account of one’s opinions’ is only valid ‘as long as the manifestation of such opinions do not interfere with the established law and order’ (Art. 10).
28. Other European constitutions allow for explicit exceptions. According to the Italian Constitution of 1947 (as amended in 2003) (It), for instance, ‘the press may not be subjected to any authorization or censorship’ (Art. 21). Seizure of publications, however, is exceptionally permitted as long as the reasons are ‘expressly determined by the law on the press or in case of violation of the obligation to identify the persons responsible for such offences’ (Art. 21 para. 2), while periodicals may be even confiscated by the ‘criminal police’ in exceptional circumstances (Art. 21 para. 3). At the same time, ‘publications, performances, and other exhibits offensive to public morality shall be prohibited’ (Art. 21 para. 4). In limited cases censorship may be imposed for blasphemy and offenses against the official state religion (relation of religion to state and society). In Ireland for example, seizure of publications may follow a criminal conviction of ‘composing, printing or publishing a blasphemous libel’ (Irish Defamation Act 1961, No. 40 (Ir); Venice Report 273ff), while in Greece seizure on the grounds of blasphemy is equally allowed. Hence, the Greek Constitution of 1975 (as amended in 2008) (Greece) provides that ‘the press is free’; that ‘censorship and all other preventive measures are prohibited’ (Art. 14 para. 2); and that ‘the seizure of newspapers and other publications before or after circulation is prohibited’ (Art. 14 para. 3). At the same time, however, seizure of publications is exceptionally allowed on grounds of ‘insults against the Christian religion’ and ‘obviously offensive obscene publications’ (Art. 14 para. 3). This provision has been applied several times within the last two decades, for instance in view of confiscating a comic book on ‘the life of Christ’ in 2004 (Haderer (2004) (Gr); Polymenopoulou (2017) 3).
(ii) Sub-Saharan Africa: Case Studies from Zimbabwe, Ethiopia, and Eritrea
29. The African Commission on Human and Peoples' Rights (ACommHPR) has contributed to clarifying that restrictions to the right to freedom of expression should be in accordance with international standards (Olaniyan 222–3), even in the case of persistent violators (Zimbabwe Human Rights; Law Office of Ghazi Suleiman; Liesbeth Zevgeld (2003) (ACHPR)). Under the Zimbabwean Constitution of 22 May 2013 (Zim), media and communication may be state-owned (Art. 61 para. 4, Constitution of the Republic of Zimbabwe: May 22, 2013 (Zim)), and the protective provision on freedom of expression ‘excludes’ various situations such as ‘incitement to violence’, ‘hate speech’, and ‘malicious injuries to one’s dignity’ (Art. 61 para. 5) that are dealt by harsh criminal laws. Likewise, the Ethiopian Constitution prohibits censorship (Art. 29 para. 3, Constitution of the Federal Democratic Republic of Ethiopia: August 21, 1995 (Eth)), yet at the same time provides for extremely vague restrictions to freedom of expression, including ‘public morals, peace, human dignity and democratic rights of citizens’ (Art. 29 para. 6), the protection of which allow arrest and detention (Kaye 15), while ‘serious crimes’ such as treason may entail the death penalty (Constitution Art. 25; Ethiopian Penal Code Art. 248 (Eth)). In Eritrea, criticizing the government is unconstitutional and may entail arrests and detentions (Liesbeth Zevgeld), while in Mauritania it is impossible to criticize the caste system, as anti-slavery activists are put to trial (IFEX (2017)).
(iii) Eastern European States and Turkey
30. Most Eastern European and post-Soviet states contain constitutional prohibitions of censorship, accompanied by a number of broad exceptions. The Constitution of the Russian Federation of 1993 (as amended to 2014) (Russ) provides that freedom of expression may be limited legitimately on grounds of ‘propaganda or agitation, which arouses social, racial, national or religious hatred and hostility [all of which] shall be prohibited’ (Art. 29 para. 2). Russia in addition maintains in its legislation the concept of the ‘foreign agent’, which amounts to prior restraints of both freedom of speech and association (Ecodefence (ECtHR) (2017)). Likewise, the Azeri Constitution prohibits censorship (Art. 50 para. 2, Constitution of the Republic of Azerbaijan: November 12, 1995 (Azer)), yet the country’s Committee for the Protection of State Secrets has the power to review all publications (Walden 51; state secrets). In similar vein, the Constitution of the Republic of Belarus of 1994 (as amended to 2002) (Belr) provides that ‘no one shall be forced to express one’s beliefs or to deny them’ and that ‘no monopolization of the mass media by the State, public associations or individual citizens and no censorship shall be permitted’ (Art 33).
31. In Turkey freedom of expression, the press, the arts and sciences, and ‘the right to publish periodicals and non-periodicals’ are regulated by Articles 26–32 of the Turkish Constitution of 1995 (as amended to 2010) (Turk), all containing detailed restrictions that may be interpreted broadly. The Turkish Constitution formally prohibits press censorship (Art. 28, para. 1) and anyone who ‘writes any news or arts which threaten the internal or external security of the state or the indivisible integrity of the state’ and which ‘tend to incite offence’ (Art. 28, para. 4) may be held liable under Turkish criminal laws, especially anti-terrorism laws (Davis 76). At the same time, the seizure of all kinds of periodicals is allowed on all possible grounds, including again the ‘indivisible integrity of the state with its territory and nation’ (Art. 27)—although ‘neither death penalty nor general confiscation shall be imposed as punishment’ (Art. 38).
(iv) Asian and South Asian States
32. The Constitution of India of 1954 (as amended to 2015) (India) (Art. 19 para. 1) guarantees freedom of expression, providing for wide limitations ‘in the interests of [the sovereignty and integrity of India,] the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence’ (Art. 19 para. 2). In Abbas, the impugned expression was the award-winning Indian documentary ‘A Tale of Four Cities’ (1968). The question raised before the Supreme Court was whether these limitations would encompass also the legitimacy of prior censorship, and, referring to the limitations mentioned in Article19 paragraph 2, it found that this may be justified in some cases (Abbas (1970) (India)). In some cases however, the Supreme Court has proved to be protective of the freedom of expression: in Rangarajan it struck down an appeal court judgement on the banning of a film showing caste-discrimination in a concern to promote tolerance (Rangarajan (1989) (India)); while in Bhadra the Calcutta High Court allowed the circulation of a book critical of Islam and written by the exiled Bangladeshi writer Taslima Nasreen (Rangarajan 2; Sujato Bhadra (2005) (India); Bhatia fn 16; Banerjee 624–5; Islamic constitutionalism). Yet in both cases the Supreme Court as well as the High Court found that ‘community interests’ may justify such bans (Banerjee 625).
33. China’s censorship regime is particularly elaborate and is the result of two premises. Firstly, information is entirely controlled by a ‘state import monopoly in cultural products’ (Ya Qin 271, 283). According to the Chinese Constitution (Constitution of the People's Republic of China: December 4, 1982 (as Amended to March 14, 2004)), anything that ‘def[ies its] basic principles of the Constitution’ or ‘injure[s] the national glory and interests’ or ‘infringe[s] upon customs and habits of the nationalities’ or ‘propagate[s] evil cults or superstition’ or ‘disturb[s] public order or destroys social stability’ may be legitimately censored (Ya Qin 277). In virtue of these provisions, more than 40 different state entities are mandated to review all imported reading materials (Ya Qin); the only search engine that remains uncensored is that of Hong Kong (Ya Qin 287; Helft and Barbosa); and a large number of journalists, writers, and activists are imprisoned (Ligabo 52–3). Secondly, ‘self-censorship’ strategies are largely used to induce ‘voluntary self-control’ (Druzin and Li 374). This is achieved by enacting extremely vague laws, blurring the boundaries of permissible speech, and instilling the fear that web users are being watched (Druzin and Li 375ff, 389). As a result, a large percentage of the population believes that censorship is legitimate (Druzin and Li 382).
34. The Japanese Constitution of 1946 (Kenpō) (Japan) guarantees freedom from government censorship with no exceptions (Art. 21; Alexander 154; Kawagishi 318). The authorities however maintain extensive powers on the matter in virtue of domestic laws. For instance, ‘the minister of the interior might prohibit the sale and distribution of newspapers, magazines, and books, in case of an anticipated disturbance of peace and order or the possible corruption of public morals’ (Kawagishi 318, on the basis of the Newspaper Law (Sinbunshi Ho, Japan) and the Publication Law (Shuppann Ho, Japan)); criticism of the Emperor may be the object of criminal prosecution (Matsui 21); while the 1950 Broadcast Law (Japan) ‘requires broadcasters to produce programs based on public order and morals, political fairness and correct reporting’ (Shimbun) and ‘allows the government to shut down [those] that fail to remain ‘politically neutral’(Fackler; Alexander 53). At the same time, foreign journalists may not have access to Japanese news due to the existence of closed circles in the Japanese press industry—known as the ‘kisha club’ system (Hung Au and Kawai 131).
(v) Israel and the Arab World
35. In Israel, the Censorship Board of Films and Plays is extremely powerful and newspapers require permission from military boards prior to circulation (Israel Film Studios (1962) (Isr); Rothstein 273; Ambramson 117ff; Asliv Jerusalem (1983) (Isr)). Given that Israel lacks a formal constitution (Navot 13, Rothstein 251), the Israeli Supreme Court is the only body that has the power to review restrictions (Rothstein 252). Yet at least until the 2000s it has generally held a somewhat inconsistent stance (Medzini 310; Rothstein 273; Gur-Arye 165; Sapir 362). In two landmark cases decided in 1953 and 1983 respectively, it found that censorship of newspapers that promoted Palestinian interests were unlawful (Kol Ha’am II (1953) (Isr); Asliv Jerusalem). Yet, a few years later it also held that in order to show a German documentary on Israel, the narration should be changed from German to Hebrew (Forum film (1960) (Isr)), and that prosecution of theatre and film directors was legitimate on the ground of ‘promoting ill-will and enmity between different sections of the population’ as well as on the basis of a ‘crude affront’ to religious beliefs and the ‘memory of Holocaust survivors’ (Amos Keynan (1972) (Isr); Gur-Arye 163; Abramson 125; Rothstein 252). In recent years, the Israeli Supreme Court has highlighted that a certain level of severity needs to be demonstrated for restrictions to be legitimate (Laor (1986) (Isr); Indor (2003) (Isr); Cohen-Almagor 87; Gur-Arye 159) although censorship remains legitimate for some forms of expression, including pornography (Station Film (1997) (Isr)).
36. In classical Islamic law, freedom of expression is protected, particularly political speech (Rabb 146). Yet throughout the Arab-Muslim world both tradition and religion may be utilized to justify censorship, and harsh criminal laws may severely punish dissent and apostasy (Rabb 148; Saeed and Saeed 37). Detentions of activists on blasphemy grounds have become more frequent after the Arab Uprising (Ligabo 110). By way of illustration, in Tunisia, Egypt, Jordan, and Yemen the reprinting of the offensive ‘Danish Cartoons’ by the media has amounted to several arrests, prosecutions, and detentions (Rabb 145; Langer 71ff). In the unique example of Saudi Arabia, Sharia police are in charge of controlling information within the state. As a result, human rights violations from these parts of the world remain largely unreported.
(vi) Central and Latin America: Chile and Mexico
37. In Latin and Central American states, constitutional provisions ‘allow for several interpretations’, as Salwen and Garrison point out—for instance, the Dominican Republic Constitution (Constitution of the Dominican Republic: January 26, 2010) ‘prohibits subversive propaganda’ yet allows ‘criticism of legal principles’ (Salwen and Garrison, 17ff). Regional human rights mechanisms in the region, however, are now well developed, enhancing the option of national remedies. An illustration is the case of Chile under Pinochet’s dictatorial regime: in 1997 the Chilean Constitutional Court found that the ban against Scorsese’s film The Last Temptation of Christ was permissible in order to protect a group’s religious sensibilities. The case reached the Inter-American Court of Human Rights (IACtHR), giving rise to a much discussed case on artistic freedom. The Court was quite succinct in observing that ‘in Chile, there is a system of prior censorship for the exhibition and publicity of cinematographic films’ which allowed the banning of movies ‘for and in the name of Jesus Christ, the Catholic Church and [the applicants in the present case]’. It nonetheless found Chile to be in breach of the ACHR (Last Temptation para. 71).
38. Censorship is generally understood in two ways: first, censorship stricto sensu, as the absence of prior control of information by the state, and secondly, censorship largo sensu, as the absence of overbroad restrictions against freedom of expression.
39. Stricto sensu censorship is subject to a number of exceptions. These are typically established for the protection of childhood and public morals, as well as for the protection against incitement to hatred, and usually go uncontested. Several constitutions may well proclaim the prohibition of censorship, yet at the same time provide for broad restrictions of freedom of expression or attribute excessive powers to their national Boards of Censors or Boards of Classification and other public bodies mandated to review artistic and cultural expression prior to publication. The existence of such bodies is generally deemed legitimate, although in some cases these classification powers include even reviewing imported cultural products. In the European context, the ECtHR has contributed to clarifying that censorship does not consist only of prior restraints (stricto sensu censorship) but also of overbroad restrictions, including criminal defamation laws and disproportionate fines and punishments. Instances of public interest however, such as the protection of childhood and the obligation to punish hate speech, may disenfranchise the right to freedom of expression, and even impose liability on private parties, including online providers (Delfi; Google Spain). In the US, in contrast, the protection of freedom of speech is uniquely robust, prohibiting content-neutral restrictions, yet prior restraint may be equally legitimate in exceptional circumstances (New York Times).
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