Published:  12:08 AM, 03 December 2019

Evolving dynamics related to freedom of expression and thought

International, national and regional standards recognize that freedom of speech, as one form of freedom of expression, applies to any medium, including the Internet. The Communications Decency Act (CDA) of 1996 was the first major attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyber law case of Reno v. ACLU, the US Supreme Court partially overturned the law.

Judge Stewart R. Dalzell, one of the three federal judges who in June 1996 declared parts of the CDA unconstitutional, in his opinion stated the following: "the Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium.

This is a constitutionally intolerable result. Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar - in a word, "indecent" in many communities.

But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. My analysis does not deprive the Government of all means of protecting children from the dangers of Internet communication … through vigorous enforcement of existing laws criminalizing obscenity and child pornography.

As we learned at the hearing, there is also a compelling need for public education about the benefits and dangers of this new medium, and the Government can fill that role as well."

In this context it would be important to note the observations made by the World Summit on the Information Society (WSIS) Declaration of Principles adopted in 2003. It made specific reference to the importance of the right to freedom of expression for the "Information Society" by stating: " we reaffirm, as an essential foundation of the Information society, and as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."

Analysts believe that freedom of information is an extension of freedom of speech where the medium of expression is the Internet. There is also general consensus that freedom of information may also refer to the right to privacy in the context of the Internet and information technology. As with the right to freedom of expression, the right to privacy is consequently recognized as a human right and freedom of information is accepted as an extension to this right.

The evolving dynamics pertaining to the concept of freedom of information has also partially emerged in response to state sponsored censorship, monitoring and surveillance of the internet. Internet censorship includes the control or suppression of the publishing or accessing of information on the Internet. The Global Internet Freedom Consortium claims there are "closed societies".

Reporters without Borders (RWB) have also created an "internet enemy list". According to RWB, the following states engage in pervasive internet censorship: China, Cuba, Iran, Myanmar/Burma, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan, and Vietnam.

In this regard a widely publicized example of internet censorship is identified as the "Great Firewall of China". It is claimed that this system blocks content by preventing IP addresses from being routed through and consists of standard firewall and proxy servers at the Internet gateways.

The system also selectively engages in DNS poisoning when particular sites are requested. Internet censorship in the People's Republic of China and Russia are conducted under a wide variety of laws and administrative regulations, including more than sixty regulations directed at the Internet. Censorship systems are vigorously implemented by provincial branches of state-owned ISPs, business companies, and organizations.

It would be worthwhile at this point to refer to the first page of John Milton's 1644 edition of Areopagitica, in which he argued forcefully against the Licensing Order of 1643.

The notion that the expression of dissent or subversive views should be tolerated, not censured or punished by law, developed alongside the rise of printing and the press. Areopagitica, published in 1644, was John Milton's response to the Parliament of England's re-introduction of government licensing of printers and publishers.

Church authorities had previously ensured that Milton's essay on the right to divorce was refused a license for publication. In Areopagitica, published without a license, Milton made an impassioned plea for freedom of expression and toleration of falsehood, stating: "Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties."

John Stuart Mill (1806-1873) later argued that without human freedom there can be no progress in science, law or politics, which according to Mill required free discussion of opinion. Mill argued that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared. Mill believed that much of what we once considered true might later turn out to be false. Therefore, views should not be prohibited for their apparent falsity.

George Orwell, a defender of free speech in an open society also stated in his proposed preface to Animal Farm (1945) - "if liberty means anything at all, it means the right to tell people what they do not want to hear".

Before concluding one also needs to refer to freedom of thought-also called freedom of conscience or ideas. This is the freedom of an individual to hold or consider a fact, viewpoint, or thought, independent of others' viewpoints. It is different from and not to be confused with the concept of freedom of speech or expression.

Freedom of thought, it may be noted is considered as the precursor and progenitor of- and thus is closely linked to- other liberties, including freedom of religion, freedom of speech, and freedom of expression.

Though freedom of thought is axiomatic for many other freedoms they are in no way required for it to operate and exist. In the Western world nearly all democratic constitutions protect these freedoms. This point of view holds that freedom of thought is the indispensable condition, of nearly every other form of freedom.

The aforesaid ideas are also a vital part of international human rights law. In the Universal Declaration of Human Rights (UDHR), legally binding on member states of the International Covenant on Civil and Political Rights (ICCPR), "freedom of thought" is listed under Article 18: "Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."

The United Nations' Human Rights Committee has accordingly observed that this, "distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief.

It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one's choice. These freedoms are protected unconditionally." Similarly, Article 19 of the UDHR guarantees that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference".

The writer, a former ambassador, is an analyst specialized in foreign affairs, right to information and good governance. He is a regular columnist of The Asian Age.
Email: [email protected]

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