Human Rights Committee

100th session

Summary record of the 2758th meeting*

Held at the Palais Wilson, Geneva, on Wednesday, 20 October 2010, at 3 p.m.

Chairperson:Mr. Iwasawa

Contents

General comments of the Committee (continued)

Draft general comment No. 34 (continued)

The meeting was called to order at 3.05 p.m.

General comments of the Committee (continued)

Draft general comment No. 34 (continued) (CCPR/C/GC/34/CRP.4)

(continued)

The Chairperson invited the Committee to resume its consideration of paragraph 41 of the draft general comment.

Mr. O’Flaherty, Rapporteur for the draft general comment, drew the Committee’s attention to the latest draft of the new paragraph 41. He recalled that it had previously been paragraph 42, but the Committee had decided to invert the order of paragraphs 41 and 42.

Mr. Thelin, supported by Sir Nigel Rodley and theChairperson , proposed that the order of the second and third sentences should be inverted.

Mr. Rivas Posada questioned the use of the word “monopolies” since, in economic terms, “monopoly” implied dominance by one entity only. That did not accurately reflect the Committee’s concern. The meaning of the word “cartel” had always been somewhat ambiguous; in many countries, it was used in common parlance and by the press to refer to criminal organizations, particularly drug cartels. He therefore suggested that both words should be avoided and the last part of the second sentence amended to read “prevent undue media dominance by privately controlled media groups”.

Mr. Amor said that the current wording of the paragraph appeared to condemn State control of the media much more than that of the private sector. He agreed that the term “monopoly” should not be used.

Mr. O’Flaherty agreed with the proposal to invert the order of the second and third sentences. He had included the words “monopolies” and “cartels” at the suggestion of colleagues, but acknowledged the arguments that had been levelled against their use. He feared that the formulation suggested by Mr. Rivas Posada might be misinterpreted as approval of media dominance by publicly controlled media groups. Taking Mr. Amor’s concern into account, he suggested that the sentence should read “prevent excessive media dominance by a limited range of privately controlled media groups and/or the State”.

Sir Nigel Rodley supported the proposal to invert the order of the second and third sentences, and proposed that the end of the third sentence should read “prevent excessive media dominance by privately controlled media groups”.

Mr. Lallah said that the term “excessive dominance” was open to value judgements. He suggested using the phrase “concentration and dominance among various media groups”.

Ms. Chanet agreed with reordering the second and third sentences; the paragraph should address State control of the media before dominance in the public sector, since State control was the major problem in the majority of States parties to the Covenant. In the last sentence, the word “groups” was insufficient as it did not evoke the notion of concentration in monopolistic situations. She therefore suggested wording such as “excessive concentration of privately controlled media in monopolistic situations”.

The Chairperson asked whether the Committee could reach consensus on the following suggestion for the last part of the third sentence: “prevent excessive media concentration and dominance by privately controlled media”.

Mr. O’Flaherty said that he did not agree with that formulation because it did not address his concern, which had little to do with massive international media corporations. Rather, he had in mind least developed countries where there might be one free private newspaper; he was worried that the State could use that paragraph in the general comment to accuse that newspaper of undue dominance and have it closed down. He therefore agreed with the wording Ms. Chanet had suggested.

Mr. Rivas Posada said the term “excessive concentration” implied that the Committee accepted a certain degree of concentration. It was exaggerated influence and pressure that was at stake, the fact that a few groups or one group could limit citizens’ right to receive information freely. The phrase “undue media dominance” captured that notion well.

Mr. O’Flaherty proposed that the Committee might reach consensus on the following formulation: “prevent undue media dominance and concentration by privately controlled media groups in monopolistic situations”.

Mr. Rivas Posada questioned the need to include “in monopolistic situations”. Surely the reference to “concentration” already indicated that there was a danger of a monopolistic situation.

Ms. Chanet said that, on the contrary, the reference to “monopolistic situations” was necessary as it explained the Committee’s concern, which was to avoid a level of concentration of some media groups to the point that they crushed others and monopolized news output.

Mr. Lallah proposed that the phrase “that is harmful to a diversity of sources and views” should be added to the end of Mr. O’Flaherty’s proposal. That would explain the Committee’s concern in full.

Mr. Amor suggested that Mr. O’Flaherty’s proposal should be replaced by “avoid the reduction of the scope of the media under the pressure of groups in monopolistic situations”.

Sir Nigel Rodley said that Mr. Amor’s suggestion would function well for some countries where there was already a diversity of media, and where the problem was that some monopolistic operations might quash all their competitors. Unfortunately, that was not the situation in many countries, where there was a need to expand, not reduce, the number of media groups. He agreed with Mr. Rivas Posada that the end of Mr. O’Flaherty’s consensus formulation sounded superfluous in English. However, if it aided understanding in other languages, the Committee might wish to agree to it and review it at second reading.

Ms. Majodina agreed that it was important to use the word “prevent” because in some countries the State had to exercise its authority to prevent, rather than merely “avoid”, media dominance. While it might be a little repetitive, she supported Mr. Lallah’s proposal.

Mr. O’Flaherty said that he too supported Mr. Lallah’s proposal, which went some way towards reflecting Mr. Amor’s concern about not reducing the scope of the media.

Paragraph 41, as amended, was adopted.

Paragraph 43

The Chairperson asked in what exceptional circumstances the blocking of local access to international media might be compatible with article 19 (3) of the Covenant. If the first sentence of the paragraph was maintained, he suggested it should be reformulated to make it negative rather than positive, indicating that the activities listed were not compatible with paragraph 3 except in highly exceptional circumstances.

Mr. O’Flaherty suggested that the paragraph should be deleted as it contained examples only.

Mr. Thelin proposed that, in the second sentence, the word “publisher” should be inserted between “media outlet” and “or journalist”.

The Chairperson, supported by Mr. Bhagwati, agreed to the deletion of the first sentence, but not the second.

Mr. Amor said the paragraph should be maintained as it could be useful in limiting the actions of some Governments that might consider the activities described to be justifiable in certain circumstances. In the first sentence, he proposed that the words “or social sectors” should be deleted, as he failed to understand how printed material could be distributed to certain social sectors and in any case, it was a highly dangerous notion.

Ms. Chanet shared the Chairperson’s concern about using paragraph 3 to justify the blocking of local access to international media. The reference to “highly exceptional circumstances” should therefore be replaced by a reference to article 4 of the Covenant, as it was only in time of public emergency that States parties could take measures derogating from their obligations under the Covenant.

Mr. Amor said that the framework of the paragraph should not be limited to article 4 of the Covenant. In some regions, there were television channels that specialized in disseminating intolerance and hatred. They were undermining the very foundation of human rights, and were, unfortunately, particularly popular with the poorer sectors of society in some countries. It was perfectly legitimate to be attentive to such phenomena in order to protect freedom of speech in general, and human rights in particular.

Sir Nigel Rodley said that paragraph 43 seemed to contain two separate ideas. The question of penalizing media outlets, publishers or journalists was an important generic issue, and he would agree that it should be maintained in the text. He proposed that the words “or the political or social system espoused by the government” should be added after the word “government” at the end of the paragraph.

Mr. O’Flaherty suggested that the second sentence, as amended by Mr. Thelin and Sir Nigel Rodley, should be included in paragraph 46 on journalists.

The Chairperson proposed that the first sentence should be deleted.

Paragraph 43, as amended, was adopted.

Paragraph 44

Sir Nigel Rodley proposed that, at the end of the paragraph after the word “government”, the words “or the political or social system espoused by the government” should be added.

Paragraph 44, as amended, was adopted.

Paragraph 45

The Chairperson said that the draft made no mention of freedom of the press, which was a traditionally established concept and should be mentioned in the section of the general comment relating to journalism. Freedom of the press was an important element of freedom of expression. Freedom of reporting should also be mentioned. He suggested deleting the final sentence.

Mr. Thelin suggested mentioning freedom of the press in the heading of that section of the general comment. He also suggested that the word “restrictive” before “registration” should be deleted from the first sentence.

Mr. O’Flaherty agreed that the term “freedom of the press” could be included in the heading of the section on journalism. He also agreed to the deletion of the word “restrictive”.

Ms. Majodina said that the registration or licensing of journalists by State authorities should not be permitted. She therefore proposed adding “by State authorities” after “journalists” in the first sentence. Accreditation schemes could result in journalists being divided into two classes. The establishment of independent monitoring bodies, such as a press ombudsman, should be mentioned.

Mr. Amor said that registration was an issue that should be handled with care. Registration and licensing were necessary for professional journalists and should be regulated by independent bodies.

Mr. Rivas Posada said the Committee should not give the impression that registration and accreditation of journalists were incompatible with paragraph 3; they were, in fact, a means of protecting the profession. A greater degree of nuance was required to ensure that the emphasis was placed on the question of who was conducting the registration and accreditation, rather than suggesting that all forms of registration were unacceptable.

Mr. Salvioli said that after the words “incompatible with paragraph 3” in the first sentence, the words “if they result in the prevention of the exercise of freedom of expression” should be added.

Sir Nigel Rodley, supported by Mr. Thelin, said that the concerns expressed by Mr. Amor, Mr. Rivas Posada and Mr. Salvioli had been met by the amendment proposed by Ms. Majodina, namely to add the words “by State authorities” after “licensing of journalists”.

On the question of limited accreditation schemes, he said that the text must recognize the need for accreditation, but only under certain circumstances. He therefore proposed that, at the end of the second sentence, the words “as long as they are non-discriminatory and promote freedom of expression” should be added.

Mr. O’Flaherty said that the paragraph should strike a balance between the need to protect traditional journalistic space and the need to ensure space for new media. The text must refer to the notion of accreditation. While he agreed that the concept should be qualified, he wondered what effects the wording proposed by Sir Nigel might have in practice. He suggested replacing the proposed wording by “as long as they promote freedom of the press”. He wondered whether adding the words “by State authorities” after “licensing of journalists” might create a legal loophole. He would therefore prefer to retain the original drafting.

Ms. Majodina agreed with Sir Nigel that the issue of discriminatory accreditation was a very real problem in many countries. Accreditation should be non-discriminatory and compatible with the Covenant.

Mr. Thelin considered that “freedom of the media” should be used, rather than “freedom of the press”.

Sir Nigel Rodley said that the term “press” covered the broadcast media as well as the print media. He would prefer to use “freedom of expression” rather than “freedom of the media”.

The Chairperson suggested that at the end of the second sentence, the words “as long as they are compatible with freedom of expression” should be added.

Mr. Rivas Posada said that while he agreed with Sir Nigel that accreditation schemes should be non-discriminatory, he did not agree that they should promote freedom of expression.

Mr. O’Flaherty suggested using the words “be compatible with” rather than “promote” in Sir Nigel’s amendment.

Sir Nigel Rodley pointed out that the “Such schemes” at the beginning of the last sentence should include registration systems as well as accreditation schemes.

Mr. O’Flaherty said that the word “Such” at the beginning of the last sentence could be replaced by “Registration, accreditation and licensing”.

Mr. Thelin said that reference should be made to the specific articles of the Covenant with which limited accreditation could be incompatible.

Mr. O’Flaherty proposed that the last sentence should be amended to read: “Registration, accreditation and licensing schemes should be applied in a manner that is non-discriminatory and in compliance with article 19 and other provisions of the Covenant”.

The Chairperson said he took it that the Committee endorsed Mr. O’Flaherty’s proposal.

Paragraph 45, as amended, was adopted.

Paragraph 46

Mr. O’Flaherty said that the paragraph reflected a number of case-specific findings.

If the first sentence was retained, he suggested that the opening phrase, which currently implied that the freedom of journalists could be limited in exceptional circumstances, should be amended to read: “It will normally be incompatible with paragraph 3 to limit the freedom of journalists ...”.

The last sentence from paragraph 43, as amended by Mr. Thelin and Sir Nigel, should also be inserted in the paragraph.

Mr. Thelin proposed that the sentence should be inserted at the beginning of paragraph 46. In that position it would match the last sentence of paragraph 44, as amended by Sir Nigel.

Mr. O’Flaherty supported the proposal.

Paragraph 46, as amended, was adopted.

The meeting was suspended at 4.30 p.m. and resumed at 4.50 p.m.

Paragraph 47

Mr. O’Flaherty said that paragraph 47 was based to some extent on recent concluding observations.

He suggested inserting the words “In this regard” at the beginning of the last sentence, which read: “Journalists should not be penalized for carrying out their legitimate activities”.

It was so decided.

Mr. O’Flaherty said that he was somewhat ambivalent about the core (third) sentence, which stated that the criminalization of terrorism should be restricted to actual participation in terrorist acts or instances of intentional incitement to terrorism, and would welcome a vigorous debate on its content.

The Chairperson asked why the term “freedom of information” was used in the fourth sentence rather than “freedom of expression”.

Mr. O’Flaherty said that terrorism-related government restrictions frequently made it difficult to access vast swathes of information that were deemed to fall under the heading of “State secrets”. He had actually considered deleting the sentence because of the legal vagueness of the term “excessive limitations”, but had decided that it might offer useful guidance to States parties on the question of freedom of information.

Mr. Thelin expressed reservations regarding the words “actual participation in terrorist acts” in what Mr. O’Flaherty described as the core sentence. He was unsure whether “participation” was being used as a technical legal term that covered all forms of participation. If not, he proposed inserting the words “various forms of” before “actual participation”.

Sir Nigel Rodley said he understood that the core sentence was intended to explain the notion of “disproportionate interference with freedom of expression” in the preceding sentence. However, he felt that it was no accident that States parties had categorized “praising”, “glorifying” or “justifying” terrorism as intentional incitement to terrorism, since it might be difficult to demonstrate incitement if the “clear and present danger test” were to be applied. Expressions of joy at the events that had occurred, for instance, on 11 September 2001 in the United States or on 7 July 2005 in the United Kingdom were so offensive to the affected populations and surviving families that some restrictions on freedom of speech might be deemed legitimate as a matter of public order. Yet such expressions did not necessarily constitute direct incitement to terrorism. One solution might be to insert the words “direct or indirect” before “incitement”, but even then the word “indirect” might be susceptible to unduly broad interpretation. Another option would be to delete the entire sentence.

Mr. Amor said that he broadly concurred with Sir Nigel’s view. The core sentence could be deleted because the concerns it expressed were reflected in the remainder of the paragraph. While certain restrictions should be imposed on the conduct of the authorities who were responsible for fighting terrorism, they should not be placed in a position where their every act was deemed to be suspect.

Mr. O’Flaherty said that he could support the proposal to delete the sentence.

The Chairperson noted that there was a consensus in favour of deletion.

Mr. Rivas Posada proposed adding the word “also” before “must be avoided” in the sentence following the one which had just been deleted.

It was so decided.

Paragraph 47, as amended, was adopted.

Paragraph 48

Mr. O’Flaherty said that the paragraph was based to a large extent on detailed references to the issue of libel in the Committee’s concluding observations on one State party.

The Committee had agreed to move the final sentence of paragraph 39 to paragraph 48. He suggested that it be inserted after the second sentence.

Sir Nigel Rodley said that he had staunchly defended the concluding observations on the State party in question, which had encountered some opposition at the time, partly because they were based on the legal practice of just one State. The corresponding international legal practice was that of the European Court of Human Rights. The text of paragraph 48 did not fully reflect the concluding observations. For example, the word “penalizing” implied that the criminal law of libel might be invoked, whereas libel in the State in question was an exclusively civil-law institution.

He proposed inserting “(see paragraph 39)” after the words “public figures” in the third sentence, since the term had been carefully defined in that paragraph. He further proposed replacing “penalizing” with “rendering unlawful” in the same sentence.

He proposed adding the following new fourth sentence: “In any event, a public interest in the subject matter of the criticism should be recognized as a defence.” The content reflected the jurisprudence of the European Court of Human Rights in the Lingens v. Austria case.

He proposed replacing the word “penalties” with “measures” in the existing fourth sentence.

Lastly, he proposed amending the final clause in the paragraph to read: “such a practice has a chilling effect that may unduly restrict the exercise of freedom of expression by the person concerned and others”. Alternatively, the amended version could end with the words “freedom of expression”. The point was that a newspaper or publisher might withdraw perfectly legitimate material because it was unable to afford the cost of a libel action.

Ms. Chanet said that the fourth sentence, which indicated that States parties should take care to avoid excessively punitive penalties, was too vague. The wording should be reformulated to specify that States parties should not punish defamation with imprisonment and exorbitant fines. The Committee had already recommended as much to certain States parties whose laws prescribed such penalties.

Mr. Rivas Posada expressed concern that the changes proposed by Sir Nigel might serve to dilute the strength of the Committee’s rejection of the criminalization of defamation. If, in the third sentence, the Committee limited itself to advising States parties to give consideration to avoiding “rendering unlawful” untrue statements that had been published in error, it was referring to a civil, not criminal case, in which punishment usually entailed merely the payment of a fine. Yet many States parties had laws prescribing prison sentences for persons who committed defamation, in particular against public figures. Therefore, the Committee should expressly and unequivocally state that defamation should not be defined as a criminal offence under the domestic law of States parties.

The Chairperson suggested that, in the first sentence, the phrase “test of necessity” should be replaced by “principle of necessity”, in accordance with the decision taken by the Committee at its ninety-ninth session.

Mr. O’Flaherty suggested that, for the wording of paragraph 48 to cover both civil and criminal law, the changes proposed by Sir Nigel could be modified slightly. In the third sentence, the phrase “and otherwise penalizing” could be added after “rendering unlawful”. Similarly, the fourth sentence could be reformulated to incorporate Sir Nigel’s proposal with an added phrase to read: “Care should be taken by States parties to avoid excessively punitive measures, including penalties”. He could accept the other suggestions made by Sir Nigel as they did not change the substance of the paragraph, with the exception of the reference to the public interest defence, which was a useful addition.

In order to address the point raised by Ms. Chanet, he suggested that the phrase “and imprisonment is never an appropriate penalty” should be added to the end of the penultimate sentence.

The issue of whether to use the phrase “principle of necessity” or “test of necessity” could be examined when finalizing the draft general comment in order to ensure consistent usage throughout the text.

As to the two alternatives proposed by Sir Nigel for the last sentence, he would defer to Sir Nigel as to which one was preferable.

Sir Nigel Rodley said he had a slight preference for his initial suggestion.

Mr. Thelin said the Committee had not resolved the issue of where to place the last sentence of paragraph 39.

Sir Nigel Rodley said that the sentence in question had two components: the identity of the person impugned and that of the institution impugned. It would be useful to have a reference to the institutional component earlier in the paragraph, since the provisions concerning the defamation of public figures extended to institutions as well, and even more strongly. Although he was not comfortable with that notion, it was a problem that the Committee could not ignore. The current reference to institutions in the context of the severity of penalties did not suffice as a treatment of the subject of the defamation of institutions.

Mr. O’Flaherty said that the solution might be to leave the last sentence of paragraph 39 in paragraph 39, and not to move it to paragraph 48, as had been previously decided by the Committee. He suggested replacing the term “defamation laws” by “laws that penalize expression with regard to certain categories of persons or institutions” or similar wording.

Mr. Thelin said that, if substitute wording was found for the word “defamation”, he could agree to the suggestion to keep the sentence in paragraph 39.

Sir Nigel Rodley said that, in the interests of progress, he would go along with that suggestion. However, its incorporation would still leave the focus on punishment and would imply — wrongly, in his view — that the Committee granted legitimacy to the repression by States parties of the criticism of institutions. He wished to reserve the right to come back to that issue at some point before the draft general comment was finalized.

Mr. O’Flaherty said that Mr. Thelin’s concern could be addressed by finding an alternative formulation for the phrase “defamation laws”, which for the moment could be designated as “x”. With regard to the issue of defamation of institutions, on at least two occasions in its concluding observations the Committee had recognized the possibility of the existence of such laws in respect of institutions. However, if members were not comfortable with the reference to the defamation of institutions, it could either be deleted altogether or else the sentence could be retained up to and including the word “impugned”.

Sir Nigel Rodley said that he would consider such a solution only as a last resort, since deleting the reference to the defamation of institutions would mean missing an opportunity to address a problem under article 19 of the Covenant, namely the repression of criticism of institutions, such as the army, for example. It might be better for the Committee to rule out provisions that prescribed as an offence the defamation of institutions.

The Chairperson confirmed that Mr. O’Flaherty’s suggestion was that the sentence in question would read: “x laws should not provide for more severe penalties solely on the basis of the identity of the person impugned”. The defamation of institutions would be addressed in a separate sentence.

Mr. O’Flaherty, confirming that that was the case, further suggested that the sentence on the defamation of institutions could read: “... laws are normally incompatible with article 19, paragraph 3”.

Ms. Chanet said that the sentence relating to institutions would be better left in paragraph 39, because that paragraph concerned the offence of lese-majesty and the criticism of institutions in general. The reference to defamation in paragraph 48 should relate only to the defamation of individuals.

Ms. Majodina expressed support for the proposals made by Ms. Chanet. She disagreed with the reference to the word “normally” in Mr. O’Flaherty’s suggested formulation for the defamation of institutions. It was not that laws that prohibited criticism of State institutions were “normally” incompatible with article 19 (3); they were always incompatible with it.

Mr. Thelin said that the proposal was problematic in that, in certain of the Committee’s concluding observations, it had merely expressed concern at the existence of such laws, not outright opposition. Nevertheless, he would consider stating that the Committee was opposed to the enactment of such laws.

Mr. O’Flaherty said that he had included the word “normally” precisely for the reasons stated by Mr. Thelin. However, if the Committee wished to make an absolute statement, it could delete the word “normally” and the footnote reference to its concluding observations.

The Chairperson confirmed that the word “normally” and footnote 99 would be deleted from Mr. O’Flaherty’s suggested formulation. Noting that there was general agreement on the substance, the Committee would leave it to the rapporteur to draft the respective formulations to be inserted in paragraphs 39 and 48.

Paragraphs 39 and 48, as amended, were adopted.

Paragraph 49

Mr. O’Flaherty, introducing paragraph 49, said that Ms. Chanet had previously suggested that each new section of the draft general comment should begin with a clear reference to the fact that the respective issues must be compatible with article 19. In that spirit, he suggested that the phrase in the first sentence beginning with “in order to be compatible”, together with the second sentence of paragraph 49, should constitute the chapeau of each of the thematic paragraphs, with the necessary editorial adjustments for each issue, from paragraph 38 onwards.

Sir Nigel Rodley proposed that, in the second sentence, the phrase “the test of necessity and its proportionality principle” should be replaced by “the principles of necessity and proportionality”.

In paragraph 49, the Committee was examining the relationship between articles 18 and 19. However, article 18 did not concern only religion; it also concerned belief. Thus, in the first and last sentences, he proposed inserting the phrase “or other belief system” after “religion”. In the fourth sentence, he proposed inserting the phrase “or certain religions” after “one religion”. In the penultimate sentence, he proposed inserting the phrase “religious doctrine and” before “tenets of faith”.

Mr. Rivas Posada said that the wording of the paragraph seemed to imply that it dealt only with the religious aspects of article 19. In fact, article 19 provided for the freedom to seek, receive and impart information and ideas of all kinds. Thus, important aspects of article 19 had been left out and, in his view, the paragraph should be expanded to include them.

Ms. Chanet agreed with Mr. Rivas Posada that the paragraph needed to be expanded. The simple fact of not having a religion was considered as blasphemy by the laws in some States – a situation that had been discussed in the Committee’s general comment No. 22. The third sentence referred to article 18 among several examples of Covenant articles with which blasphemy prohibitions and other prohibitions of display of disrespect to a religion or belief system must comply. She pointed out, however, that reference should be made to the fact that such provisions must comply with article 18 as interpreted through general comment No. 22.

Mr. O’Flaherty suggested that the Committee should adopt all of Sir Nigel’s proposals. With regard to the points raised by Mr. Rivas Posada and Ms. Chanet, he noted that a specific reference to general comment No. 22 already appeared in the paragraph, but he saw no reason not to include another. He proposed the insertion of the phrase “taking account of relevant general comments, including general comment No. 22” after “including articles 2, 5, 18 and 26”.

Paragraph 49, as amended, was adopted.

Mr. O’Flaherty said that he wished to raise an issue with regard to paragraphs 51 to 55. Although he had not been mandated to write them, he had found it necessary to reflect on the relationship of articles 19 and 20. When the Committee took up those paragraphs, it should consider whether to include them in the draft general comment or not.

The meeting rose at 6 p.m.