When information in the interest of national security

Whether it’s arresting journalists under bogus ‘coup charges’, prosecuting them under vague anti-terrorism laws or preventing publication on sensitive subjects, States regularly censor speech on the grounds that it threatens ‘national security’.

This brief sets out the limitations of restrictions on freedom of expression on the basis of national security, drawing in particular from the Johannesburg Principles1https://www.article19.org/resources/johannesburg-principles-national-security-freedom-expression-access-information/ on national security, freedom of expression and access to information. The Principles were adopted by a group of international legal experts in 1995, facilitated by ARTICLE 19 and the Centre for Applied Legal Studies at the University of Witswatersrand. Based on existing international legal standards, they set out what restrictions on freedom of expression and information are allowed under international human rights standards on the basis of national security.

Definitions

The right to freedom of expression, opinion and information means the right to hold opinions without interference, and to seek, receive and impart information and ideas of all kinds, through any media, regardless of frontiers.

A threat to national security includes the use or threat of force against the country’s very existence or its territorial integrity. The threat can be external or internal.

Restricting expression on the basis of national security

The right to free expression is a fundamental right protected by various international and regional instruments on human rights, including Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the European Convention on Human Rights (European Convention). It must not be restricted on a discriminatory basis, but it can be restricted under certain strict circumstances to protect specific interests, including national security. The state is responsible for showing that the restriction meets these requirements, known as the three-part test.

1. Restrictions must be clearly set out in law, in a way that is understandable, accessible, and specific, so that individuals know what actions are covered. There must be safeguards in place against abuse of the law, such as judicial scrutiny.
2. Restrictions must genuinely be for the purpose of protecting national security, and must have the demonstrable effect of protecting that aim. So restrictions purported to be for protecting national security, but which in fact just stifled journalistic reporting, do not meet this test.
3. Restrictions must be necessary, meaning the restricted expression is a serious threat to national security and limiting the expression is the least restrictive way of addressing this threat.

A clear example of a failure to meet this test from Turkey was the life sentence meted out to the Altan brothers and others. This case fails at every stage of the test because:

• •  Their pre-trial detention was unlawful: The brothers were charged with ‘attempting to overthrow the constitutional order through violence and force’ but the evidence was their interviews and articles. Speech can’t be considered ‘violence’ or ‘force’ under international law or Turkish law. In the absence of facts, evidence or information showing that they had been involved in criminal activity, they could not be reasonably suspected of having committed the crimes of which they were accused.
  • The charges did not pursue a legitimate aim. While they claimed to be protecting national security, upon examination of the evidence it’s clear that the entire prosecution aimed at shutting down criticism of the government. There was no connection established between the speech in question and national security.
  • The prosecution was clearly not necessary to protect national security in Turkey since there was no connection between the expression and the national security of the country. Criticism of governments and publication of information regarded by a country’s leaders as endangering national interests should not attract criminal charges for particularly serious offences such as belonging to or assisting a terrorist organisation, attempting to overthrow the government or the constitutional order or disseminating terrorist propaganda.

Access to information and national security

The right to access information held by public authorities is integral to freedom of expression. States don’t just have to prevent restrictions – they have to adopt measures to enable the right to information. States however often restrict access to information on the basis of national security. This must only be allowed according to the three part test, and:

• States must set out in legislation specific and narrow categories of information which are restricted – they can’t create a blanket restriction on access to any information linked to national security.
• The public interest in knowing the information must be the primary consideration when determining the legality of its restriction – so laws should include clauses on assessing the public interest value.
• Any denial of access to information on national security grounds must be able to be reviewed by an independent judicial authority, with access to the information at issue.
• Information which is already in the public domain cannot be restricted.

Expression which cannot be considered a threat to national security

There are a range of specific types of expression which states can never restrict on the basis of national security. Crucially, ‘national security’ laws should not be used to restrict expression, if it’s in the public interest to be exposed to that expression.

Types of expression which cannot be restricted on the basis of national security include:

1. Calling for a non-violent change of government or government policy.
2. Industrial action.
3. Criticism of or insult to the nation, the state or its symbols, government, officials or agencies, and the same for a foreign nation.
4. Conscientious objection to or advocating objection to military conscription or service, a conflict, or the threat or use of force in international disputes.
5. Communicating information on human rights violations, or violations of humanitarian law.
6. Expression in a specific language, including minority languages.
7. Expression of information by or about an organisation that the government considers a threat to national security or other interests – for example, journalists reporting on an armed group.
8. Exposure of government wrongdoing or information about public institutions.
9. The discussion or promotion of different ideologies.

Prior censorship can also never be used to restrict expression on the basis of national security, except during a national emergency.

Restrictions on ‘incitement to terrorism’

Many restrictions on national security, including in Turkey, rely on vaguely defined ‘terrorism’ provisions, including incitement to terrorism. For laws relating to incitement to terrorism to be compatible with international human rights law, they must meet the following criteria:

• They must be limited to the incitement of conduct that is truly terrorist in nature;
• They must restrict freedom of expression no more than is necessary for the protection of national security;
• They must be prescribed by law in precise language, and avoid vague terms such as “glorifying” or “promoting” terrorism;
• They must include an actual (objective) risk that the act incited will be committed;
• They should expressly refer to intent to communicate a message and intent for this message to incite the commission of a terrorist act; and
• They should preserve the application of legal defences or principles leading to the exclusion of criminal liability by referring to “unlawful” incitement to terrorism.

Restrictions on journalists and civil society

National security can never be used as a justification for compelling a journalist to reveal their source. It also can’t be used to justify preventing access for journalists, intergovernmental bodies or civil society to an area where there’s grounds to believe human rights violations are being or have been committed, nor to an area of violence or armed conflict (unless their presence poses a clear risk to the safety of others in this situation).

Punishment for expression

Governments must not punish the person responsible for the expression (including through criminal law) if the information does not actually harm/isn’t likely to harm national security, or if the public interest in knowing the information outweighs the harm, including when the information was learned through government service.

Anyone subject to charges for expression on national security grounds must:

• Be granted the full set of free trial rights set out under international law.
• Be tried by a jury or genuinely independent judges. Importantly, a trial by judges without security of tenure in these cases is a violation of fair trial rights.
• Be tried in civilian courts unless members of the military, and never by specially constituted courts or tribunals.
• Not be subject to disproportionate sentences or punishment.

This policy summary was produced with the financial support of the European Union. Its contents are the sole responsibility of ARTICLE 19 and do not necessarily reflect the views of the European Union.