Lp. Tõnu Anton: Saadan koopia rahvusvahelise tsensuurivastase keskuse “Article 19” eksperthinnangust Eesti põhiseaduse eelnõu nende osade kohta, mis käsitlevad sõnavabadust. Minu arvates väärivad need ettepanekud täit tähelepanu ja arvestamist. “Article 19” on saatnud meie põhiseaduse eelnõu ka mõnele teisele sarnasele organisatsioonile. Loodame neiltki peatselt kuulda.
Tarmu Tammerk, Manchester, 25. jaanuar 1992
ARTICLE 19 MEMO
To: Tarmu Tammerk, The Baltic Independent
From: Sandra Coliver, Legal Officer
Date: January 20, 1992
Copy: Interested others
RE: Comments on the freedom of expression provisions of the draft Constitution of the Republic of Estonia, issued by the Constitutional Assembly on December 13, 1991
Following are ARTICLE 19’s comments on the two provisions of the December 13, 1991 draft Constitution of the Republic of Estonia which most directly affect the right to freedom of expression.
1. Article 19, paragraph 1 of the draft Constitution reads:
Everyone shall have the right to freely receive and propagate information, and to express his or her opinions either orally or in print, by picture, image or any other media. This freedom may be restricted by law for the purposes of protecting national security, public order or morals, or human dignity and honor.
There are three major defects of this formulation which would permit the government to impose impermissible restrictions on freedom of expression.
First, the paragraph protects only the right to receive and propagate information. It should also protect ideas.
Second, the inclusion of “morals” as a ground for restricting freedom of expression, while part of the leading international standards drafted in the 1950s and ’60s (principally, the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights), has since then been shown to be highly problematic. “Morals” is so broad and ill-defined that it can be, and has been, used to prohibit a wide range of political, religious and artistic expression which warrants protection. To the extent that the government wishes to have express authority to protect the sensibilities of children, a phrase could be included which would, for instance, authorize the government to protect “the morals of children”. A solution which ARTICLE 19 prefers would be to delete “morals, or human dignity and honor” and replace them with the words “the rights and freedoms of others”.
Third, the paragraph does not specify that any restrictions must be necessary to protect the enumerated grounds for restriction, and does not make clear that the restrictions must be set forth in law.
ARTICLE 19 has two lesser concerns about the current draft of article 19. While the first sentence guarantees the right to receive and propagate information, it does not guarantee the right to seek information. The right to seek information and ideas is set forth in article 19 of the ICCPR (although it is omitted from the European Convention on Human Rights). The right to seek information has been interpreted to require governments to establish procedures by which individuals may petition for information held by the government even though they may ultimately be denied access to such information. The provision of adequate procedures at the least provides protection against arbitrary refusal of requests for information.
The international standards, including the European Convention and the ICCPR, guarantee freedom of expression “regardless of frontiers”. The drafters of the Estonian Constitution might consider including such a phrase in order to make explicit that the government may not subject materials from outside Estonia’s borders to harsher controls than those to which materials produced within Estonia are subjected.
In sum, ARTICLE 19 would recommend the following reformulation of article 19, paragraph 1:
Everyone shall have the right freely to seek, receive and impart information, regardless of frontiers, and to express his or her opinions orally, in print, by picture or image, or through any other media.
This freedom may be restricted only by duly enacted law, and only as necessary in a democratic society to protect national security, public order, or the rights and freedoms of others.
2. Article 10, paragraph 2 currently reads:
The propagation of national, racial or religious hatred shall be prohibited.
ARTICLE 19 recommends that that sentence be moved to article 19. Our first suggestion would be to incorporate this prohibition into the general limitation clause of article 19 by adding to the end of our proposed article 19, sentence 2:
… or to prevent incitement to national, racial or religious hatred.
The virtue of this approach is that it makes clear that any restriction on expression must be necessary to prevent incitement, and must be regarded as an exception to the general rule of full freedom of expression.
In the alternative, ARTICLE 19 recommends that the current Article 10, paragraph 2 be added to Article 19 so that it follows the second sentence and that the following two additional changes be made.
First, ARTICLE 19 suggests that the words “propagation of” be replaced with “incitement to”. “Propagation” covers a broader range of activities than does “incitement” and there is even less international consensus concerning its core meaning. “Propagation” is not a word found in the main international treaty provisions concerning national, racial or religious hatred. The closest reference may be found in the International Convention on the Elimination of All Forms of Racial Discrimination, article 4 of which calls on states parties to condemn “propaganda … based on ideas or theories of superiority of one race or group of person of one colour or ethnic origin”.
“Propagation” generally is understood to mean “dissemination” or “promotion”. The verb “propagate” is used in article 19 of the current draft Constitution to mean “impart” (see excerpt of article 19 on page 1 of this memo).
“Incitement” is a word which is most precisely defined in U.S. jurisprudence. There, “incitement” is defined to mean provocation or encouragement which is substantially likely to lead to imminent unlawful action, and is contrasted with mere “advocacy”, which is the promotion of an idea or course of action which is not likely to be the direct cause of imminent action (see Brandenburg v. Ohio (1969)). “Advocacy” and “incitement” are both used in paragraph 2 of article 20 of the International Covenant on Civil and Political Rights, which requires states parties to prohibit by law “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. While few international experts would go so far as to maintain that “incitement” in article 20 has the meaning given to it in U.S. jurisprudence, a developing, internationally held interpretation is that “incitement” implies some form of causal relationship with unlawful action.
Second, ARTICLE 19 suggests that the words “which is reasonably likely to provoke violence or to cause intimidation or fear” be added after the word “hatred”. These words are recommended in order to narrow the prohibition so that it would punish only the type of expression which threatens public order or causes fear to individuals and to minimize the potential to punish speech which warrants protection. (For instance, the paragraph as now written could be used to prohibit a great deal of “rap” music and much of the writings of the black power movement in the United States.)