THE JOHANNESBURG

PRINCIPLES ON NATIONAL

SECURITY, FREEDOM OF

EXPRESSION AND ACCESS

TO INFORMATION

ARTICLE 19

ACKNOWLEDGEMENTS

These Principles were adopted on 1 October 1995 by a group of experts in international

law, national security, and human rights convened by ARTICLE 19, the International

Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies

of the University of the Witwatersrand, in Johannesburg.

The Principles are based on international and regional law and standards relating to the

protection of human rights, evolving state practice (as reflected, inter alia, in judgments

of national courts), and the general principles of law recognized by the community of

nations.

These Principles acknowledge the enduring applicability of the Siracusa Principles on

the Limitation and Derogation Provisions in the International Covenant on Civil and

Political Rights and the Paris Minimum Standards of Human Rights Norms In a State of

Emergency.

ARTICLE 19 would like to thank the UK Foreign and Commonwealth Office for its

financial support for the development and publication of these principles. We would also

like to thank the International Grants Office of the Community Fund, which provided

funding for the reprint of this document. The positions taken in this document do not

necessarily reflect the views of the Foreign and Commonwealth Office or the

Community Fund.

ENDORSEMENTS

These Principles have been endorsed by Mr. Abid Hussain, the UN Special Rapporteur

on Freedom of Opinion and Expression, in his reports to the 1996, 1998,1999 and 2001

sessions of the United Nations Commission on Human Rights, and referred to by the

Commission in their annual resolutions on freedom of expression every year since 1996.

INTRODUCTION

These Principles were adopted on 1 October 1995 by a group of experts in

international law, national security, and human rights convened by ARTICLE 19, the

International Centre Against Censorship, in collaboration with the Centre for Applied

Legal Studies of the University of the Witwatersrand, in Johannesburg.

The Principles are based on international and regional law and standards relating to

the protection of human rights, evolving state practice (as reflect-ed, inter alia, in

judgments of national courts), and the general principles of law recognized by the

community of nations.

These Principles acknowledge the enduring applicability of the Siracusa Principles on

the Limitation and Derogation Provisions in the International Covenant on Civil and

Political Rights and the Paris Minimum Standards of Human Rights Norms In a State

of Emergency.

PREAMBLE

The participants involved in drafting the present Principles:

Considering that, in accordance with the principles proclaimed in the Charter of the

United Nations, recognition of the inherent dignity and of the equal and inalienable

rights of all members of the human family is the foundation of freedom, justice and

peace in the world;

Convinced that it is essential, if people are not to be compelled to have recourse, as a

last resort, to rebellion against tyranny and oppression, that human rights should be

protected by the rule of law;

Reaffirming their belief that freedom of expression and freedom of information are

vital to a democratic society and are essential for its progress and welfare and for the

enjoyment of other human rights and fundamental freedoms;

Taking into account relevant provisions of the Universal Declaration of Human

Rights, the International Covenant on Civil and Political Rights, the UN Convention

on the Rights of the Child, the UN Basic Principles on the Independence of the

Judiciary, the African Charter on Human and Peoples’ Rights, the American

Convention on Human Rights and the European Convention on Human Rights;

Keenly aware that some of the most serious violations of human rights and

fundamental freedoms are justified by governments as necessary to protect national

security;

Bearing in mind that it is imperative, if people are to be able to monitor the conduct

of their government and to participate fully in a democratic society, that they have

access to government-held information;

Desiring to promote a clear recognition of the limited scope of restrictions on

freedom of expression and freedom of information that may be imposed in the

interest of national security, so as to discourage governments from using the pretext

of national security to place unjustified restrictions on the exercise of these freedoms;

Recognizing the necessity for legal protection of these freedoms by the enactment of

laws drawn narrowly and with precision, and which ensure the essential requirements

of the rule of law; and

Reiterating the need for judicial protection of these freedoms by independent courts;

Agree upon the following Principles, and recommend that appropriate bodies at the

national, regional and international levels undertake steps to promote their widespread

dissemination, acceptance and implementation:

I. GENERAL PRINCIPLES

Principle 1: Freedom of Opinion, Expression and Information

(a) Everyone has the right to hold opinions without interference.

(b) Everyone has the right to freedom of expression, which includes the freedom to

seek, receive and impart information and ideas of all kinds, regardless of frontiers,

either orally, in writing or in print, in the form of art, or through any other media

of his or her choice.

(c) The exercise of the rights provided for in paragraph (b) may be subject to

restrictions on specific grounds, as established in international law, including for

the protection of national security.

(d) No restriction on freedom of expression or information on the ground of national

security may be imposed unless the government can demonstrate that the

restriction is prescribed by law and is necessary in a democratic society to protect

a legitimate national security interest. The burden of demonstrating the validity

of the restriction rests with the government.

Principle 1.1: Prescribed by Law

(a) Any restriction on expression or information must be prescribed by law. The law

must be accessible, unambiguous, drawn narrowly and with precision so as to

enable individuals to foresee whether a particular action is unlawful.

(b) The law should provide for adequate safeguards against abuse, including prompt,

full and effective judicial scrutiny of the validity of the restriction by an

independent court or tribunal.

Principle 1.2: Protection of a Legitimate National Security Interest

Any restriction on expression or information that a government seeks to justify on

grounds of national security must have the genuine purpose and demonstrable effect

of protecting a legitimate national security interest.

Principle 1.3: Necessary in a Democratic Society

To establish that a restriction on freedom of expression or information is necessary to

protect a legitimate national security interest, a government must demonstrate that:

(a) the expression or information at issue poses a serious threat to a legitimate

national security interest;

(b) the restriction imposed is the least restrictive means possible for protecting that

interest; and

(c) the restriction is compatible with democratic principles.

Principle 2: Legitimate National Security Interest

(a) A restriction sought to be justified on the ground of national security is not

legitimate unless its genuine purpose and demonstrable effect is to protect a

country’s existence or its territorial integrity against the use or threat of force, or

its capacity to respond to the use or threat of force, whether from an external

source, such as a military threat, or an internal source, such as incitement to

violent overthrow of the government.

(b) In particular, a restriction sought to be justified on the ground of national security

is not legitimate if its genuine purpose or demonstrable effect is to protect

interests unrelated to national security, including, for example, to protect a

government from embarrassment or exposure of wrongdoing, or to conceal

information about the functioning of its public institutions, or to entrench a

particular ideology, or to suppress industrial unrest.

Principle 3: States of Emergency

In time of public emergency which threatens the life of the country and the existence

of which is officially and lawfully proclaimed in accordance with both national and

international law, a state may impose restrictions on freedom of expression and

information but only to the extent strictly required by the exigencies of the situation

and only when and for so long as they are not inconsistent with the government’s

other obligations under international law.

Principle 4: Prohibition of Discrimination

In no case may a restriction on freedom of expression or information, including on

the ground of national security, involve discrimination based on race, colour, sex,

language, religion, political or other opinion, national or social origin, nationality,

property, birth or other status.

II. RESTRICTIONS ON FREEDOM OF EXPRESSION

Principle 5: Protection of Opinion

No one may be subjected to any sort of restraint, disadvantage or sanction because of

his or her opinions or beliefs.

Principle 6: Expression That May Threaten National Security

Subject to Principles 15 and 16, expression may be punished as a threat to national

security only if a government can demonstrate that:

(a) the expression is intended to incite imminent violence;

(b) it is likely to incite such violence; and

(c) there is a direct and immediate connection between the expression and the

likelihood or occurrence of such violence.

Principle 7: Protected Expression

(a) Subject to Principles 15 and 16, the peaceful exercise of the right to freedom of

expression shall not be considered a threat to national security or subjected to any

restrictions or penalties. Expression which shall not constitute a threat to national

security includes, but is not limited to, expression that:

(i) advocates non-violent change of government policy or the government

itself;

(ii) constitutes criticism of, or insult to, the nation, the state or its symbols,

the government, its agencies, or public officials, or a foreign nation,

state or its symbols, government, agencies or public officials;

(iii) constitutes objection, or advocacy of objection, on grounds of religion,

conscience or belief, to military conscription or service, a particular

conflict, or the threat or use of force to settle international disputes;

(iv) is directed at communicating information about alleged violations of

international human rights standards or international humanitarian law.

(b) No one may be punished for criticizing or insulting the nation, the state or its

symbols, the government, its agencies, or public officials, or a foreign nation,

state or its symbols, government, agency or public official unless the criticism or

insult was intended and likely to incite imminent violence.

Principle 8: Mere Publicity of Activities That May Threaten National

Security

Expression may not be prevented or punished merely because it transmits information

issued by or about an organization that a government has declared threatens national

security or a related interest.

Principle 9: Use of a Minority or Other Language

Expression, whether written or oral, can never be prohibited on the ground that it is in

a particular language, especially the language of a national minority.

Principle 10: Unlawful Interference With Expression by Third Parties

Governments are obliged to take reasonable measures to prevent private groups or

individuals from interfering unlawfully with the peaceful exercise of freedom of

expression, even where the expression is critical of the government or its policies. In

particular, governments are obliged to condemn unlawful actions aimed at silencing

freedom of expression, and to investigate and bring to justice those responsible.

III. RESTRICTIONS ON FREEDOM OF INFORMATION

Principle 11: General Rule on Access to Information

Everyone has the right to obtain information from public authorities, including

information relating to national security. No restriction on this right may be imposed

on the ground of national security unless the government can demonstrate that the

restriction is prescribed by law and is necessary in a democratic society to protect a

legitimate national security interest.

Principle 12: Narrow Designation of Security Exemption

A state may not categorically deny access to all information related to national

security, but must designate in law only those specific and narrow categories of

information that it is necessary to withhold in order to protect a legitimate national

security interest.

Principle 13: Public Interest in Disclosure

In all laws and decisions concerning the right to obtain information, the public

interest in knowing the information shall be a primary consideration.

Principle 14: Right to Independent Review of Denial of Information

The state is obliged to adopt appropriate measures to give effect to the right to obtain

information. These measures shall require the authorities, if they deny a request for

information, to specify their reasons for doing so in writing and as soon as reasonably

possible; and shall provide for a right of review of the merits and the validity of the

denial by an independent authority, including some form of judicial review of the

legality of the denial. The reviewing authority must have the right to examine the

information withheld.

Principle 15: General Rule on Disclosure of Secret Information

No person may be punished on national security grounds for disclosure of

information if (1) the disclosure does not actually harm and is not likely to harm a

legitimate national security interest, or (2) the public interest in knowing the

information outweighs the harm from disclosure.

Principle 16: Information Obtained Through Public Service

No person may be subjected to any detriment on national security grounds for

disclosing information that he or she learned by virtue of government service if the

public interest in knowing the information outweighs the harm from disclosure.

Principle 17: Information in the Public Domain

Once information has been made generally available, by whatever means, whether or

not lawful, any justification for trying to stop further publication will be overridden

by the public’s right to know.

Principle 18: Protection of Journalists’ Sources

Protection of national security may not be used as a reason to compel a journalist to

reveal a confidential source.

Principle 19: Access to Restricted Areas

Any restriction on the free flow of information may not be of such a nature as to

thwart the purposes of human rights and humanitarian law. In particular, governments

may not prevent journalists or representatives of intergovernmental or nongovernmental

organizations with a mandate to monitor adherence to human rights or

humanitarian standards from entering areas where there are reasonable grounds to

believe that violations of human rights or humanitarian law are being, or have been,

committed. Governments may not exclude journalists or representatives of such

organizations from areas that are experiencing violence or armed conflict except

where their presence would pose a clear risk to the safety of others.

IV. RULE OF LAW AND OTHER MATTERS

Principle 20: General Rule of Law Protections

Any person accused of a security-related crime involving expression or information

is entitled to all of the rule of law protections that are part of international law. These

include, but are not limited to, the following rights:

(a) the right to be presumed innocent;

(b) the right not to be arbitrarily detained;

(c) the right to be informed promptly in a language the person can understand of the

charges and the supporting evidence against him or her;

(d) the right to prompt access to counsel of choice;

(e) the right to a trial within a reasonable time;

(f) the right to have adequate time to prepare his or her defence;

(g) the right to a fair and public trial by an independent and impartial court or

tribunal;

(h) the right to examine prosecution witnesses;

(i) the right not to have evidence introduced at trial unless it has been disclosed to the

accused and he or she has had an opportunity to rebut it; and

(j) the right to appeal to an independent court or tribunal with power to review the

decision on law and facts and set it aside.

Principle 21: Remedies

All remedies, including special ones, such as habeas corpus or amparo, shall be

available to persons charged with security-related crimes, including during public

emergencies which threaten the life of the country, as defined in Principle 3.

Principle 22: Right to Trial by an Independent Tribunal

(a) At the option of the accused, a criminal prosecution of a security-related crime

should be tried by a jury where that institution exists or else by judges who are

genuinely independent. The trial of persons accused of security-related crimes by

judges without security of tenure constitutes a prima facie violation of the right to

be tried by an independent tribunal.

(b) In no case may a civilian be tried for a security-related crime by a military court

or tribunal.

(c) In no case may a civilian or member of the military be tried by an ad hoc or

specially constituted national court or tribunal.

Principle 23: Prior Censorship

Expression shall not be subject to prior censorship in the interest of protecting

national security, except in time of public emergency which threatens the life of the

country under the conditions stated in Principle 3.

Principle 24: Disproportionate Punishments

A person, media outlet, political or other organization may not be subject to such

sanctions, restraints or penalties for a security-related crime involving freedom of

expression or information that are disproportionate to the seriousness of the actual

crime.

Principle 25: Relation of These Principles to Other Standards

Nothing in these Principles may be interpreted as restricting or limiting any human

rights or freedoms recognized in international, regional or national law or standards.