Article 19(3) of the International Covenant on Civil and Political Rights recognizing the limitations on freedom of expression sets the parameters for which Member States may regulate and control freedom of expression. Article 19(3) states that fundamental freedoms come with certain responsibilities and as such they are likely to 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.
” Therefore, restrictions on freedom of expression in international law must satisfy a three tier test, otherwise any restriction contravenes Article 19 of the Universal Declaration of Human Rights. The first part of the test requires that the restriction on free speech be provided for by domestic law. The European Court of Justice determined in The Sunday Times v. United Kingdom, 26 April 1979, Application No. 13166/87, 2 EHRR 245, that in order for the law to be enforceable it must be fully circulated and: “..
formulated with sufficient precision to enable the citizen to regulate his conduct”. Once it can be established that the limitation on freedom of expression is provided for by concise and widely circulated law it must be proved that the limitation serves a legitimate purpose. As previously stated those legitimate purposes must be pursuant to the protection of the rights of others and for the “protection of national security” or “for the protection of public heath or morals. ” Thirdly, the restriction must be shown to be “necessary’.
The European Court of Justice previously discussed the meaning of the word necessary in the context of free speech within the ambit of international law. In the case of Lingens v. Austria, 8 July 1986, Application No. 9815/82, 8 EHRR 407 the European Court of Justice determined that a restriction on free expression and free speech is only necessary when it furthers a “pressing social need. ” The Member State must provide reasons for the restrictions and those reasons must not only be “relevant and sufficient” but they are also required to be “proportionate to the aim pursued. ”