Can freedom of expression be limited?

Yes, there are limitations to the exercise of freedom of expression.

This is because freedom of expression is what is called a non-absolute right. A right is non-absolute if there are some situations when the law allows the government to limit the enjoyment of the right.

Limitations on media outlets: The Nigerian constitution in sections 39 (2 & 3) requires the licensing and authorization requirements from the president before owning and operating a radio or television station.

Limitations on everyone: The Nigerian constitution in sections 39(3) and 45 allow for the restriction of the right to freedom of expression:

• For preventing the disclosure of information received in confidence.
• For maintaining the authority and independence of the courts.
• As a result of occupying a certain office in the government.
• For belonging to the military, police or any other security agencies.
• In the interest of security, public safety, public order, public morality, and public health
• To protect the rights and freedom of other people.

• Examples of limitations/restrictions
• If a confidential relationship exists, such as between a lawyer and his client.
• If it is an order of a competent court.
• To prevent the sharing of information received in the course of duty by a government official, military personnel, a police officer, etc.
• Defamation laws: which provide that people cannot intentionally share lies about other people in a way which affects their reputation.
• Data protection laws: which limit the sharing or disclosing personal information or sensitive information of other people.
• Hate speech laws: may restrict or limit the inciting of violence against other groups.
• Some laws have been made in Nigeria in order to protect National security such as the Cybercrimes Act and the Quarantine Laws made during the COVID-19 outbreak.

However, these limitations/restrictions are not automatic and all of these restrictions to freedom of expression must comply with some requirements to comply with international standards.  See the next section for more about these requirements.

The three part test.

The three part test is an internationally recognised standards that is to be used when restricting the right to freedom of expression to avoid the government abusing human rights by the excessive limitation of this right.

It is called the three-past test because every government action that limits the right to freedom of expression must pass these three tests to be acceptable and legal.

The three tests are:

1. The restriction must be legal.
2. The restriction to freedom of expression must be legitimate.
3. The restriction to freedom of expression must be necessary and proportional.

What is the meaning of legality?

This test means that a law in the country must create the restrictions to the right to freedom of expression. This means that the government cannot create a restriction if it is regulated in another form that is not a law, for example a policy, a regulation, an ordinance or a verbal order.

Hint: When the government limits freedom of expression, a good response from the individuals and groups should be: Can the government tell us what law permits the government to do this?

In addition, the law creating the restriction must:

• identify the circumstances when the restriction should be applied in a way that is specific and clear to allow people to know the limitation in advance how to act,
• not allow those restricting freedom of expression discretion to choose how to limit it in a way that is not clear in the law,
• not allow other human right violations, and
• not make freedom of expression the exception to the rule.
• the legality test ensures that people are aware of the restrictions and that, as laws are created through democratic process, there is more control over which laws are dictated.

For example: A State government cannot ban peaceful protests because it is uncomfortable with what people would say at the protests. There must be a law permitting the government to ban protests and also meet the other two tests below.

What is the meaning of Legitimacy?

The legitimacy test ensures that the purpose for which the government restricts the right to freedom of expression is real and important. There is a list of specific reasons under which a law can restrict freedom of expression. The ICCPR states that there are only three purposes for limiting freedom of expression. They include:

• To respect of the rights or reputation of others.
• To protect national security or public order.
• To protect public health or morals.

This also means that any restrictions to freedom of expression by law and using any of these purposes must be applied only for that specific purpose and must be directly related to the specific purpose.

For example: if the government creates a law which restricts posting about the political handling of the pandemic by the ministry of health online under the reason that it will affect public health, that is not a legitimate reason.

For example: a legitimate restriction of the right to freedom of expression could be a government restriction on officers of the Nigerian military from sharing information about the plans and strategies of the government for fighting Boko Haram.

Hint: When the government limits freedom of expression, a good question to ask is: What is the purpose for limiting freedom of expression through this law and is this purpose actually being protected with this law?

What is the meaning of Necessity/Proportionality?

Restrictions must be applied only when there is a real need for it to meet the purposes above. If freedom of expression is only a minor threat to national security, to public health or morals and to the reputation of others then it is not sufficient to be restricted. This means that restrictions must be used in special cases as a last resort. Restrictions must also be proportionate to the goal they are set to achieve and be the least restrictive as possible to meet that goal.

For example: closing down the internet to protect public morals instead of removing violent Facebook accounts is not the least restrictive measure, will not be proportionate.

Hint: when there is a restrictive law, ask if the restriction is the least possible way that can be applied to the situation, and is there an alternative measure which would accomplish the same goal?

We discussed that the government are duty bearers who have the responsibility of promoting, protecting and fulfilling the right to freedom of expression. However, it is an unfortunate reality that there are more incidences of government abuse of the freedom of expression in Nigeria than its promotion, protection, and fulfilment.

In October 2020, Nigerian youths took to the street and online to express their displeasure about police brutality and demanded for changes by the government. However, the government made several attempts to restrict the exercise of their freedom of expression by declaring an impromptu curfew and sending the Military against the protesters. The government went further to freeze the bank accounts of some protesters, seized the international passport of some, arrested some, while accusing some protesters of terrorism and trying to overthrow the government.

Exercise: Think about the restrictions mentioned above and whether the three part test has applied here. Where these restrictions legal, legitimate and necessary?

A right is breached when the government stops people from enjoying their right through illegal means, like not passing the three part test. Therefore, the government breaches the right to freedom expression when it makes it impossible for people to express themselves or attack people for their expression.

• Criminalizing dissent or attack on criticisms focused on the government

This refers to punishing people that criticize the government or members of an opposition party. This can be done by various ways and not always direct ways. Examples range from using excessive force at protests, banning rallies, intimidation and harassment of dissidents or passing laws which prohibit or censor those that criticise the government. It can also include, for example, isolating or discriminating dissidents at work or in applications for public subsidies or benefits, because of their expressed views;

• Government actions against freedom of thought and opinion

One aspect of freedom of expression is freedom to hold opinions and ideas. People generate their ideas and opinion through what they read, hear or learn in school. Therefore, when the government bans privately owned schools or censoring school curricular to meet political objective, they breach the right to freedom of expression. In addition, a government directive to remove Nigerian history from the curriculum of secondary schools in Nigeria is a breach of freedom of expression.

• Illegal censorship

Censorship means banning or suppressing the publication of news, music or other forms of art. Censorship is illegal when it is done without the backing of the law (and meet the three part test). One recent example of illegal censorship is the Nigerian Broadcasting Commission’s fine to Arise TV, AIT and Channels Television for their coverage of the EndSARS protest. This is a breach of freedom of expression. Other forms of illegal censor ship could be the refusal or restriction of license to run a media house or making laws that will require government scrutiny of any information before it is broadcast to the public.

• Refusal to disclose information

Government secrecy, which can manifest in refusal without a reason to grant access or make available information that is of public interest. The reasons for refusal are stated in the law and there has to be a justification about why publishing information cannot be released. For example, the government refusal to publish the breakdown of salaries of government officials is a breach of the right to freedom of expression.

• Blackmail and threat of harm

Government’s harassment or threat of harm to citizen for participating in a protest or for a post on social media are breaches of the right to freedom of expression. Other examples of breaches are freezing bank accounts, arresting individuals for criticizing the conduct of the government and seizing international passports of protesters.

• Internet shutdown

Given the rise in online activism, government around the world have resorted to shutting down the internet or blocking access to website or social media platforms in breach of the right to online expression.

• Excessive policing of elections

Elections, referenda and plebiscites are instrument of expression in a democracy. The government therefore has the duty to ensure that citizens are encouraged to use this instrument. Therefore, the intimidation of voters during elections by agents of the government or security agencies is a breach of the right to freedom of expression.

• Illegal surveillance, interception of communication and collection of personal data.

Sharing one’s opinion is an important part of the right to freedom of expression. However, sometimes when people share such opinions about what is happening in the society, they are put under surveillance by government security agencies, track their devices, collect personal information and sometimes go to the extent of arresting them. These constitute a breach on the right to freedom of expression.

• Penalizing the use of citizen’s native language.

Example; punishing a student for speaking Igbo, Yoruba or Hausa in school.