Urgent Business: Hong Kong, Freedom of Expression and 1997
The right to impart information and ideas, the act of freedom of expression, applies to all information and ideas, transmitted through any media. This freedom, according to the European Court of Human Rights, is "applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive but also to those that offend, shock or disturb the State or any other sector of the population".14 With this interpretation, censorship on purely political grounds, a feature of several local laws, would contravene Article 16.
3.1.3 Restrictions, special duties, responsibilities
Article 16's third paragraph sets out the legitimate restrictions to the exercise of the right to freedom of expression:
The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals.
The restrictions, it must be emphasized, have no bearing on the right to hold opinions set out in paragraph (1) which is absolute. Moreover, the grounds for restriction in paragraph (3) are exhaustive, and should be read narrowly.
The rationale for restrictions is that the exercise of freedom of expression is seen to carry with it "special duties and responsibilities" towards the legitimate rights or reputations of other people, and towards the protection of national security, social stability, public health or morals. If freedom of expression is not exercised with circumspection, it can be abused. International jurisprudence and human rights case law confirms such restrictions must be the exception to the rule, however, the protection of the freedom being the primary principle. A generous interpretation should apply to freedom of expression, as it should do for all rights, the onus clearly being on the authorities to justify that any restriction is strictly necessary in a democratic society.
Any restriction, moreover, should be provided for in the law, which must be accessible and clear (an important consideration in Hong Kong where legislation affecting freedom of expression is often worded in broad and ambiguous fashion, and is therefore open to abuse and arbitrary interpretation). The authorities theoretically must also be able to show that a restriction satisfies the "principle of legitimacy" in that it is justifiable on the strict grounds permitted under the article, as well as the "principle of proportionality" in that the "restriction
14 Handyside v. United Kingdom, Judgment of the European Court of Human Rights of 7 Dec. 1976, Series A No. 24, para. 49.
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