ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION The Special Rapporteur, therefore, underscores once again that the tendency of many Governments to withhold information from the people at large … is to be strongly checked.15 In November 1999, the UN Special Rapporteur was joined in his call by his regional counterparts, bringing together all three special mandates on freedom of expression – the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Representative on Freedom of the Media of the Organisation for Security and Cooperation in Europe and the Special Rapporteur on Freedom of Expression of the Organisation of American States. They adopted a Joint Declaration which included the following statement: Implicit in freedom of expression is the public’s right to open access to information and to know what governments are doing on their behalf, without which truth would languish and people’s participation in government would remain fragmented. 16 A rapidly growing number of States have now recognised the importance of freedom of information and have implemented laws giving effect to the right. In the last fifteen years, a range of countries including India, Israel, Japan, Mexico, South Africa, South Korea, Sri Lanka, Thailand, Trinidad and Tobago, Guatemala, the United Kingdom and most East and Central European States have adopted freedom of information laws. In doing so, they join a large number of other countries that have enacted such laws some time ago, including Sweden, the United States, Finland, the Netherlands, Australia and Canada. 2.2 Restrictions to Freedom of Expression and Information One of the key issues in freedom of expression and information is defining when a public body can refuse to disclose information, or when the exercise of freedom of expression may be restricted. Under international law, freedom of information may be subject to restrictions, where those restrictions meet the requirements stipulated in Article 19(3) of the ICCPR: The exercise of the rights [to freedom of expression and information] 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; (b) For the protection of national security or of public order (ordre public), or of public health or morals. Any restriction on freedom of expression and information must meet a strict three-part test, as recognised by the UN Human Rights Committee. This test requires that any restriction must a) be provided by law, b) be for the purpose of safeguarding one of the legitimate interests listed, and c) be necessary to achieve this goal. The first condition, that any restrictions should be ‘provided by law,’ is not satisfied merely by setting out the restriction in domestic law. Legislation must itself be in accordance with human rights principles set out in the ICCPR. 17 The European Court of Human Rights, in 15 Report of the Special Rapporteur, 4 February 1997, Promotion and protection of the right to freedom of opinion and expression, UN Doc. E/CN.4/1997/31. 16 26 November 1999. 17 Faurisson v. France, Decision of 8 November 1996, Communication No. 550/1993 (UN Human Rights Memorandum on Jordan’s Protection of State Secrets and Documents Provisional Law No. (50) for the Year 1971ARTICLE 19, London, 2005 – Index Number: LAW/2005/1205 -4-