Freedom of Expression and its Legal Consequences in the Era of Social Media

Abstract

Freedom of expression has become a household phrase, but its meaning is deeper than first appears, as found in some international instruments and national laws. The Universal Declaration of Human Rights, the first human rights instrument adopted by the United Nations (UN) General Assembly Resolution in Paris on 10 December 1948 to abate human rights violations and atrocities after the Second World War, addressed freedom of expression as one of the touchstones of democracy. Presently, all 192 member states of the United Nations have signed up to it, by virtue of the other UN treaties they have signed, even though it was intended to be a soft law. The Declaration was signed as a soft law to be respected but was without binding force. however, through the passage of time, it has become a customary international law with binding force. Freedom of expression, which is an inalienable right, permits human beings, among other things, to seek information, and if received, the recipient may impart the same through any media, regardless of frontiers, to inform and educate people about their rights.

The importance of freedom of expression is that it is one of the pillars of human rights and is found in all the relevant international and regional human rights instruments. The international human rights instruments that have provisions on freedom of expression are: the International Covenant on Civil and Political Rights (ICCPR), which came into force on 23 March 1976, after it had been adopted for signature, ratification and accession by the UN General Assembly on 16 December 1966; the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the UN General Assembly on 21 December 1965; and the Convention on the Rights of the Child, which was adopted by the UN General Assembly on 20 November 1989 and came into force in September 1990.

All three regional human rights instruments have recognized freedom of expression as an indispensable part of human rights and have provisions for it. The three regional human rights instruments are: the European Convention on Human Rights (ECHR), which was signed in Rome in 1950 and came into force on 3 September 1953; the African Charter on Human and Peoples’ Rights 1981 (ACHPR), which came into force on 21 October 1986; and the American Covenant on Human Rights (ACHR), which was adopted in 1969 and came into force on 18 July 1978. Freedom of expression is also recognized by the Declaration of Human Rights Defenders, which came into force in 1998 to protect human rights defenders within the context of their work. The rights specifically mentioned in the declaration include freedom of expression. There are also national laws on freedom of expression. The position of Ghana is contained in Article 21 of the Constitution of Ghana 1992, which guarantees freedom of speech and expression, which include freedom of the press and other forms of media such as social, print and electronic media.

The article shall address the limitations placed on freedom of expression, even though it appears to be absolute when one reads Article 19 of the Universal Declaration of Human Rights. Article 19 of the ICCPR seems to suggest that freedom of expression is not absolute, and a person who seeks information may impart it through any media, including social media, upon receipt of the same, provided the information put out on media, including social media, is within the limitations placed on freedom of expression. Article 9 of the ACHPR also suggests that the right to receive information is absolute, but the right to express and disseminate opinion shall be within the law prescribed by the member states.

Freedom of expression is a term of art and such freedom may be expressed in the form of writing, orally, print, or any other form of art or pictorial representation, and the limitations are placed on any of the modes and forms of expression stated above. Article 13 of the ACHPR prescribes criminal punishment for a person who goes beyond the limitations placed on freedom of expression with the aim of protecting public order, social order, national security, public health, public morality, and respecting the rights or reputations of others.

The article aims to discuss all the limitations imposed on freedom of expression, including those punishable either civilly or criminally, or both, for the purposes of respecting the rights of others and not defaming or slandering another person, protecting national security, public order, public health, or morality. The recent trend of events is that people go on social media to defame others, violate their rights, cause fear and panic, and publish information about security threats, public order, and morality with impunity under the guise of freedom of expression. Social media, as a set of interactive internet applications, facilitates the creation, curation and sharing of the contents of information created either by individuals or in collaboration with others, and at the moment it seems to be the fastest form of media. The article shall discuss freedom of expression and its limitations from different human rights instruments and domestic statutes in respect of sanctions that can be imposed on a person who goes beyond their rights to violate the rights of others or defame others, or on a person who has published material that would affect the security of the state, public order, public health, or morals. It shall further discuss the forum where an action may be brought against the person who violates the rights of others in the name of freedom of expression and the appropriate forum where a person charged with an offence under it may be prosecuted.

Keywords: admissibility of evidence; communication; African Charter on Human and Peoples’ Rights; criminalization of freedom of expression; documentary information; freedom of expression; International Covenant on Civil and Political Rights; limitations on freedom of expression; social media; Universal Declaration of Human Rights.