Promotion and protection of the right to freedom of opinion and expression
Page Count: 24 pages
Date: September 8, 2015
Originating Organization: United Nations, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
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In the report, submitted in accordance with Human Rights Council resolution 25/2, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression addresses the protection of sources of information and whistle-blowers. Everyone enjoys the right to access to information, an essential tool for the public’s participation in political affairs, democratic governance and accountability. In many situations, sources of information and whistle-blowers make access to information possible, for which they deserve the strongest protection in law and in practice. Drawing on international and national law and practice, the Special Rapporteur highlights the key elements of a framework for the protection of sources and whistle-blowers.
1. On matters of public concern, how does information that is unjustifiably hidden become known? In some situations, formal oversight mechanisms and access to information laws compel disclosure. Even where they do exist, however, they are not always effective. Other approaches may be needed, for as a general rule, secrets do not out themselves. Rather, disclosure typically requires three basic elements: a person with knowledge who is willing and able to shed light on what is hidden; a communicator or a communication platform to disseminate that information; and a legal system and political culture that effectively protect both. Without that combination — source, dissemination and protection — what is secret all too often remains hidden, and the more that remains hidden, the less authorities are held accountable and individuals are able to make informed decisions about matters that may most affect them and their communities.
2. Those are the principal rationales for legal and political frameworks that promote and guarantee access to information and protect the individuals and organizations that often make such access possible. Notwithstanding formal progress, Governments, international organizations and private entities often target persons disclosing secret information, in particular when they bring to light uncomfortable truths or allegations. Those who wish to call attention to malfeasance may find internal channels blocked, oversight bodies ineffective and legal protection unavailable. The absence of recourse often forces whistle-blowers to become sources for public disclosure, which may make them vulnerable to attack. International, regional and national trends toward greater formal protection do not necessarily translate into effective protection for sources and whistle-blowers. Ineffective protection results from gaps in law; a preference for secrecy over public participation; technology that makes it easy for institutions to breach privacy and anonymity; overly broad application of otherwise legitimate restrictions; and suspicion or hostility towards sources, whistle-blowers and the reporters who make such information known.
3. The disclosure of secret information runs across a broad spectrum, with some instances, such as Edward Snowden’s revelations of surveillance practices, making a deep and lasting impact on law, policy and politics, while others struggle for attention and response. While the present report may be read in the light of all such cases, the Special Rapporteur does not analyse herein specific situations, but aims instead to highlight the main elements that should be part of any framework protecting sources and whistle-blowers consistent with the right to freedom of expression. He begins by reviewing everyone’s right to receive information of all kinds, especially information held by public bodies. He then highlights the principal elements of the international legal frameworks for source and whistle-blower protection, while also drawing on the practice of States, international and regional mechanisms and non-governmental initiatives. The report concludes with a set of recommendations.
4. As part of the preparations for the present report, a questionnaire was sent to States seeking input on national laws and practices, to which 28 States responded. Civil society organizations and individuals also contributed with critically important submissions. State responses and submissions, along with recommendations for further research into best practices, which could not be cited in the report, are available on the web page of the Special Rapporteur. On 11 June 2015, a meeting convened in Vienna drew upon civil society and academic expertise in source and whistle-blower protection.3 The Special Rapporteur thanks all who made contributions to the preparation of the present report.
B. Restrictions on the right to information
8. In adopting the International Covenant on Civil and Political Rights and other measures, Governments did not preclude themselves from keeping certain kinds of information hidden from public view, but because article 19 promotes so clearly a right to information of all kinds, States bear the burden of justifying any withholding of information as an exception to that right. Article 19 (3) provides that any restriction on freedom of expression must be provided by law and be necessary to achieve one or more of the enumerated legitimate objectives, which relate to respect of the rights or reputations of others or to the protection of national security or of public order or of public health or public morals (see A/HRC/29/32, paras. 30-35). Limitations must be applied strictly so that they do “not put in jeopardy the right itself” (see Human Rights Committee, general comment No. 34, para. 21), a point that the Human Rights Council emphasized when it urged States not to restrict the free flow of information and ideas (see Council resolution 12/16).
9. Three considerations deserve emphasis. First, to be necessary, a restriction must protect a specific legitimate interest from actual or threatened harm that would otherwise result. As a result, general or vague assertions that a restriction is necessary are inconsistent with article 19. However legitimate a particular interest may be in principle, the categories themselves are widely relied upon to shield information that the public has a right to know. It is not legitimate to limit disclosure in order to protect against embarrassment or exposure of wrongdoing, or to conceal the functioning of an institution.
10. Second, under the well-accepted proportionality element of the necessity test, disclosure must be shown to impose a specific risk of harm to a legitimate State interest that outweighs the public’s interest in the information to be disclosed. If a disclosure does not harm a legitimate State interest, there is no basis for its suppression or withholding (see general comment No. 34 of the Human Rights Committee, para. 30). Some matters should be considered presumptively in the public interest, such as criminal offences and human rights or international humanitarian law violations, corruption, public safety and environmental harm and abuse of public office. The importance of the public’s interest has been emphasized repeatedly in other regional mechanisms. National laws relating to the right to information also commonly provide for a public interest analysis.
11. Third, restrictions on access to information must not be left to the sole discretion of authorities. Restrictions must be drafted clearly and narrowly, designed to give guidance to authorities, and subjected to independent judicial oversight (see A/HRC/29/32, paras. 29-33). Layers of internal governmental oversight should ensure that restrictions on access to information meet the standards of article 19 and related national laws.
12. Effective access to information begins with how Governments categorize, or classify, information as secret or otherwise not subject to disclosure. Over-classification occurs when officials deem material secret without appropriately assessing the public’s interest in access to it or determining whether disclosure would pose any risk to a legitimate interest. Secrecy should be imposed only on information that would, if disclosed, harm a specified interest under article 19 (3); even in the event of a risk of harm, a process should be in place to determine whether the public interest in disclosure outweighs that risk. Processes that allow for evaluation of classification decisions, within institutions and by the public, including penalties for over-classification, should be considered and adopted in order to ensure the greatest possible access to information in the public interest. The Swedish Constitution and its Freedom of the Press Act provide perhaps a welcomed translation of the principle of maximum disclosure when it comes to access to information held by public bodies, protecting the right of all public officials to communicate information and, except for specified situations, prohibiting public officials from sanctioning others for communicating information outside their institutions.
13. While the Special Rapporteur evaluates herein legal frameworks, law alone is a necessary but insufficient basis for protection of any right under the umbrella of freedom of expression. A strong formal framework on the right to information will not overcome an official culture of secrecy and disrespect for the rule of law. Protection requires a political and bureaucratic culture that values transparency and public participation. An independent judiciary and legal profession, broad and non-discriminatory access to justice, and basic law enforcement capacity and willingness to confront violence and intimidation form the basic infrastructure of protection.