As with all of the human rights protected in the Charter, the right to freedom of expression may be subject to reasonable limitations that can be demonstrably justified in a democratic society in accordance with s. 7 of the Charter. You should refer to Part 2 of these Charter Guidelines for further information on s. 7.


The right to freedom of expression is also subject to a specific limitation in s. 15(3). The right to freedom of expression has a distinctive role within the Charter in that it is specifically recognised that there are special duties and responsibilities that attach to it.


Note, though, that it may be difficult (though not impossible) to justify a limitation on the right to hold an opinion without interference (in s. 15(1)) since this is an absolute right in international human rights law. An absolute right is one that in international human rights law must be respected at all times and cannot be limited.


Section 15(3): specific limitation


The ICCPR recognises that the right of free expression in article 19(2) can be abused so as to undermine the rights of others. For this reason, it recognises in article 19(3) that the exercise of the right to freedom of expression ‘carries with it special duties and responsibilities’ and establishes a means by which the right can be restricted.


The Charter models this approach by including s. 15(3), which contains a specific limitation on the right to freedom of expression. This invites consideration of particular matters that are identified as ones which, when satisfied, specifically justify a restriction on the right.

Section 15


(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary—

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

The application of s. 15(3) will involve satisfying a number of conditions. All of these conditions must be met for s. 15(3) to be satisfied.


First, the relevant restriction proposed on the right to freedom of expression must be ‘lawful’.


Second, the relevant restriction must be imposed for a particular purpose, either:

  • to respect the rights and reputation of other persons (for example, defamation law, or privacy exemptions under Freedom of Information legislation); or
  • in order to protect national security, public order, public health, or public morality.


Third, the relevant restriction must be ‘reasonably necessary’ for one of these purposes.

1. Is the restriction ‘lawful’?


The requirement for a restriction to be lawful means that the limitation is sufficiently provided by law (for example, in legislation).

2. What is the purpose of the restriction?


You must consider the purpose of the restriction and ensure that it is necessary either:

  • to respect the rights and reputation of other persons; or
  • for the protection of national security, public order, public health or public morality.


With the exception of ‘person’, these terms are not defined in the Charter. However, they have all been considered in international human rights law jurisprudence. Their meaning is discussed in the following paragraphs.
Person: The term ‘person’ in s. 15(3)(a) is defined in s. 3 of the Charter as a human being. It does not apply to corporations.


National security: The protection of national security is a well-established basis for restricting rights in international human rights law. It is invoked when the political independence or the territorial integrity of a country is at risk. Common national security restrictions on freedom of expression are the prohibition on the transmission of ‘official secrets’ and civil proceedings for breach of confidence in some circumstances. Both seek to limit expression by prior restraint. Note that the mere mention of national security will not mean that a restriction is permissible. It must still be reasonably necessary.


Public order: The term ‘public order’ may be defined as the sum of rules which ensure the peaceful and effective functioning of society. Common ‘public order’ limitations on the right to freedom of expression include prohibitions on speech that may incite crime, violence or mass panic. It may also extend to a prohibition on mass broadcasting without a licence to prevent confusion of signals and blockage of the airwaves, although this has not arisen in the international case law.128

Public health: The ‘public health’ limitation on the right to freedom of expression has not been the subject of any cases before the UN Human Rights Committee. A prohibition of misinformation about health-threatening activities and restrictions on the advertising of harmful substances such as tobacco are probably justified under this limitation. This was the stated intention of the inclusion of this aspect of the specific limitation by the Human Rights Consultation Committee in its Report. 129


Public morality: The UN Human Rights Committee has stated that there is no universally applicable common standard for what constitutes ‘public morality’.130 A restriction on obscene or pornographic material is an example of a restriction of free expression on the ground of public morality.


3. Is the restriction ‘reasonably necessary’?


As stated above, the restriction must be necessary for one of the prescribed purposes. This requirement is often referred to as one of ‘proportionality’. In other words, the law must be appropriate and adapted to achieving one of the ends or purposes enumerated in s. 15(3).131


This means that you must consider:

  • whether the policy, program or legislation is effective to achieve one of the enumerated ends;
  • whether it impinges on free expression more than is necessary to achieve that end given the seriousness of that end; and
  • whether there are less restrictive means of achieving that end.

Examples of restrictions that may come within the scope of section 15(3):

  • Imposing a ban on misinformation about the health effects of smoking may be considered reasonably necessary to protect public health.
  • Prohibiting the sale of pornographic material may be considered reasonably necessary to protect public morality.
  • Civil or criminal law restrictions on speech that incites racial violence and other violent conduct are also likely to be lawful restrictions for the purpose of both respecting the rights and reputation of others and protecting public order. 132

Section 7: General limitation


It is possible that the right protected by s. 15 may be limited even though none of the requirements of the specific limitation (s. 15(3)) are present.


The right to freedom of expression may be restricted by a legislative provision, policy or program that meets the requirements of the general limitation under s. 7 of the Charter, even though it does not meet the particular requirements of the specific limitation under s. 15(3). You should refer to Part 2 of these Charter Guidelines for more information on s. 7.

 

Footnotes

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128 Manfred Nowak, cited in Sarah Joseph, Jenny Schultz, Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, (OUP, 2nd edn, 2000) 42.

129 Human Rights Consultation Committee (Victoria), Rights, Responsibilities and Respect (2005) 44.


130 Hertzberg v. Finland, Human Rights Committee, Communication No. 61/1979, UN Doc. CCPR/C/15/D/61/1979 (2 April 1982) [10.3].


131 Faurisson v. France, Human Rights Committee, Communication No. 550/934, UN Doc. CCPR/C/58/D/550/1993 (16 December 1996) [8].

132 In relation to violent expression, see Irwin Toy Ltd v. Quebec {1989} 1 SCR 927