The Right to Information and Freedom of Expression

The Right to Information and Freedom of Expression Presented by: Firdausi Firdaus, PhD Candidate Date: March 21, 2023 The Right to Information (Freedom of Information)  Resolution 59 of the UN General Assembly adopted in 1946  Article 19 of the Universal Declaration of Human Rights (UDHR):  Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.  Article 19 of the International Covenant on Civil and Political Rights (ICCPR): Everyone shall have the right to freedom of expression; this right shall include 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 choice.  1992 Rio Declaration (Principle 10)→ access to environmental information  Article 15 of the Treaty on the Functioning of the European Union ("Treaty o Lisbon") Citizens and residents of EU Countries have a right of access to th documents of the European Parliament, the Council and the European Commission.  Article 42 of the European Charter of Fundamental Rights The right of access to EU Institution documents  The right to information an essential factor in ensuring the right to water, the right to health, and the right to education. The right to information is also specifically protected in the Convention of the Rights of the Child and the Convention on the Rights of Persons with Disabilities.  Under Indonesia Constitution (UUD 45) in article 28F: Every person shall have the right to communicate and to obtain information for the purpose of the development of his/her self and social environment, and shall have the right to seek, obtain, possess, store, process and convey information by employing all available types of channels.  Under Law Number 39 Year 1999 Concerning on Human Rights:  Everyone has the right to communicate and obtain information they need to develop themselves as individuals and to develop their social environment.  Everyone has the right to seek, obtain, own, store, process, and impart information using all available facilities.  Law Number 14 Year 2008 Concerning on Public Information Openness  Solution for this issue: 1. Implementation of Open Data Policy 2. Balancing with privacy and personal data protection rights 3. Increasing Public Awareness  Regulatory Impact Assessment on relevant law that related with the right to information (e.g. Law Number 14 Year 2008 Concerning on Public Information Openness)  In SDG context, the right to information is align with many goals beyond the SDG goals 4 (quality education) because basically, the right to information is crucial to the achievement of SDG in the future as a whole not just 1 goal.  In Smart City context, the right to information is align with many element of smart city, not only smart government and smart education, because the data driven policy is require information and this is apply not only to the government but also to private and commercial institution. The Right to Freedom of Expression - Article 19 of the Universal Declaration of Human Rights(UDHR): - Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. - Article 10 of the European Convention on Human Rights: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." - Under Indonesia Constitution/UUD 45, Freedom of Expression is recognized in: 1. Article 28 UUD 45 (Indonesia Constitution) The freedom to associate and to assemble, to express written and oral opinions, etc., 2. Article 28F UUD 45 (Indonesia Constitution) → Every person shall have the right to communicate and to obtain information for the purpose of the development of his/her self and social environment, and shall have the right to seek, obtain, possess, store, process and convey information by employing all available types of channels. 3. Article 28E(3) UUD 45(Indonesia Constitution) Every person shall have the right to the freedom to associate, to assemble and to express opinions. 4. Under Law Number 39 Year 1999 Concerning on Human Rights, freedom of expression is recognized in: Article 25 Everyone has the right to express his opinion in public, and this includes the right to strike according to prevailing law. 5. Law Number 9 Year 1998 Concerning on Freedom of Expression in Public - Based from the Article 1 of Law No. 9 of 1998 on Freedom of Expression in Public, "Independence of expression is the right of every citizen to express thoughts verbally, in writing, as freely and responsibly in accordance with the provisions of the legislation in force." - Law Number 40 Year 1999 Concerning on the Press ("the Press Law") - Challenges/Limited by the Law as well: 1. Article 28 A paragraph 2(UUD 45-Indonesia Constitution) which says "in rights and freedoms, everyone shall be subject to the restrictions established by law with the sole purpose of securing due recognition and respect for the rights an freedoms of others and to meet the demands of a fair in accordance with considerations of morality, religious values, security and public order in a democratic society. 2. Law Number 11 Year 2008 Concerning on Information and Electronic Transactions (ITE) - Freedom of Expression from SDG Perspective A lot of 17 SDGs are linked indirectly to the freedom of expression but the 16th goal is the more relevant as it promotes "Peace, Justice and Strong. Institutions", in other words it promotes peaceful societies, access to justice and build effective institutions. SDG number 10 reduced inequalities is also relevant with the right to freedom of expression. - Freedom of expression is come with the right to receive information too, so b ensuring freedom of expression right, it means it will ensure public access to information especially good quality of information not the propaganda or the fake news. - The challenges nowadays is how free media in democracy can maintain the quality of its product, because freedom of expression have to be followed with respect of some rules and limitation such as: 1. Restriction to use expressions and words that incite hatred, violence, and discrimination 2. In sharing and distributing content should respect intellectual property right (e.g. copyrights) 3. In sharing and re-using information should respect reputation of others. - From the smart city context, the smart city component such as Smart Government, Smart Infrastructure, Smart Citizen are more likely that will ensure the right to freedom of expression is happening in Smart City. The transparency from the government in the form of open data will increase more people access to information that can be crucial and determine on what the want to say/respond. Smart infrastructure will ensure that the connectivity (technical resource, e.g. Internet connectivity) is provided. Smart citizen as human is social creature will make people have a place to interact each other and know what to express as a result from their interaction. - Article 18 UDHR - Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. - International Covenant on Civil and Political Rights (ICCPR) Article 18(1,2,3,4) - 1981 Declaration of the General Assembly Art.1 (1,2,3), 5 (1,2,4), 6(a, b, c, d, e, f, g, h), 6(I) - Commission on Human Rights resolution 2005/40 (paragraph 4 (c, d, e)), Human Rights Council resolution 6/37 (paragraph 9(g), 12e, h) and General Assembly resolution 65/211 (paragraph 12 (g)) - Human Rights Committee General Comment 22 Para.3,4,5, 11 - Human Rights Council resolution 6/379 (e, g) - Commission on Human Rights resolution 2005/40 4(b)(d)