Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
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The East African Court of Justice found Article 19(b), (g), (i) and part of (j), Article 20 of Burundi’s Press Law of 2013 violated the Treaty of East African Community. It ruled that the stated subsections of Article 19 placed an impermissible restriction on journalists by prohibiting them from disseminating information related to the stability of the currency, offensive reports on public or private persons, information that may harm the credit of the State and its national economy, and records of diplomatic activities and scientific research. It also held that it was unreasonable under Article 20 in forcing journalists to reveal their sources of information concerning the State security, public order, defence secrets, and the moral and physical integrity of individuals.
On July 30, 2013, the Burundian Journalists’ Union referred the government of Burundi’s newly enacted Press Law, No. 1/11, to the East African Court of Justice. The Applicant argued the that the law violates the freedom of press, and thereby, it constitutes a violation of Burundi’s obligation under the Treaty of East African Community in upholding and protecting human rights and the principles of democracy, rule of law, transparency and accountability as specified in Articles 6(d) and 7(2) of the Treaty.
The Applicant contended that the law enforces an arbitrary accreditation scheme that compels journalists to obtain a press card before exercising their profession. According to the Applicant, the law also gives an unfettered authority to the government-run National Communication Council in approving or rejecting press card applications.
Furthermore, it argued that the law restricts the media’s ability to be critical of the government and to freely disseminate information on public matters. Under Article 18, journalists are obligated to disseminate only “balanced information.” The law also places several content-based restrictions, including the prohibition of publishing information that insults the heads of state. It also empowers the government to impose fines, as well as criminal penalties for violation of these provisions.
Moreover, the Applicant criticized the law for requiring journalists to identify the confidential sources of their information relating to the offenses against the state security, public order, and the moral and physical integrity of one or more persons. The Applicant contended that this provision is incompatible with international and national standards that recognize the importance of protecting confidential sources in order to ensure the public’s access to vital information.
The first issue was whether the Court had proper jurisdiction over the case. The Court ruled that it was within the ambit of its jurisdiction to decide whether the challenged law was in conformity with the Treaty. It cited Article 33(2) of the Treaty, which provides that the “[d]ecisions of the Court on the interpretation and application of this Treaty shall have precedence over decisions of national courts on a similar matter.”
The second issue was whether Articles 5-7, 17-20, 26-35, 44-46, 48-54, 56-64, and 66-69 of the Press law violated Articles 6(d) and 7(2) of the Treaty. Under Article 6(d), fundamental principles of the East African Community includes: adherence to “the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protect ion of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.” Article 7(2) provides that the Partner States of the Community “undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.” In Mohochi vs. AG of Uganda, Ref. No.5 of 2011, the Court emphasized that the principles enshrined in those articles are binding on Partner States and are not merely aspirational.
In evaluating the challenged provisions of the Press Law, the Court applied the test used by the High Court of Kenya in Cord v. Kenya, H.C. Petition No. 628 of 2014, according to which a justifiable limitation on a fundamental right: (1) must be clearly prescribed by law and be accessible to citizens; (2) the objectives of the law must be important to the society, and (3) the law must be rationally connected to those objectives and limits the freedom as little as possible.
As to the mandatory accreditation scheme in issuing press cards to journalists under Articles 5-7 of the Press Law, the Court did not find a violation of the right to free press. It viewed the scheme as a “purely technical and administrative registration procedure.” [para. 91] Also, in the absence of any evidence by the Applicant concerning the abuse of power by the Burundi’s National Communication Council in issuing or withdrawing press cards, the Court declined to invalidate the provisions because of the Council’s discretionary power. It reiterated that the “[f]reedom of the press has never been an absolute right in any democracy and the present limitation is reasonable and justifiable.” [para. 92]
With regard to Articles 17-20 of the Press Law on duties of journalists, the Court first emphasized that “citizens of any democratic State should be entitled to information that informs their choices on matters of governance.” [para. 95] In light of this principle, the Court concluded that Article 19 of the law placed unduly restriction on the right to freedom of expression and thus, incompatible with Articles 6(d) and 7(2) of the Treaty. It held that the prohibition of Article 19 against disseminating “information on the stability of the currency, offensive reports on public or private persons, information that may harm the credit of the State and national economy, and records of diplomatic activity and scientific research,” was neither reasonable nor proportional to the objectives.
As to Articles 48-54 of the law concerning the right of reply, correction, and compensation, the Court did not find any incompatibilities with the Treaty. It found no fault with the law’s obligation upon journalists to publish accurate information and that in case violating such duty, the law reasonably affords the prejudiced vicim the right to reply, correction, and compensation.
Article 20 of the law obligates journalists to reveal their sources of information to competent authorities where the information relates to State security, public order, defence secrets and the moral and physical integrity of one or more persons. The Court cited Goodwin v. UK, Appl. No. 28957/95 (2009), in which the European Court of Human Rights held that the “[p]rotection of journalistic sources is one of the basic conditions for press freedom . . . Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.” Accordingly, the Court ruled that the obligation of journalists under Article 20 to reveal their sources of information on matters of State secrets violated the Treaty because “the way of dealing with State secrets is by enacting other laws to deal with the issue and not by forcing journalists to disclose their confidential sources.” [para. 109] Moreover, the Court found it unreasonable to force the press to disclose confidential sources of information relating to the physical and moral integrity of individuals because the other less restrictive legislations, such as privacy laws could satisfy the Burundian government’s concerns.
Lastly, concerning the provisions of the Press Law on penalties and punishments on press offenses, the Court was unable to determine whether the penalties imposed on journalists were unreasonably harsh because the evidence lacked sufficient comparative analysis information that could assist the Court in evaluating the proportionality of penalties to the gravity of offenses.
Accordingly, the Court concluded that among the contested provisions of the Press Law, Article 19(b), (g), (i) and part of (j), Article 20 violated Articles (6)(d) and 7(2) of the Treaty. It ordered the government of Burundi to promptly implement the judgment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case is a recent significant regional decision on the right to freedom of expression. The East African Court of Justice upheld the fundamental right to impart information on matters of public concern. It also ruled that it is incompatible with right to force journalist to reveal their confidential sources of information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The African Commission on Human and Peoples’ Rights held that “it is the widest possible circulation of news, ideas and
opinions as well as the widest access to information by society as a whole, that ensures public order.”
The Commission found that “freedom of expression is a condition sine qua non for the development of political parties, scientific and cultural societies and in general, those who wish to influence society. That it is also indispensable for the formation of public opinion.”
The Commission stated that “free expression constitutes one of the essential foundations of a democratic society and is one of the basic working conditions for its progress and for the development of every man.”
The European Court of Human Rights held that the “freedom of political debate is at the very core of the concept of a democratic society.”
The Court ruled that “Protection of journalistic sources is one of the basic conditions for press freedom . . . Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”
“The role of a free press in a democratic society cannot be underestimated and that a free press is in the front line of the battle to maintain democracy.”
The U.S. Supreme Court held that “only a free and unrestrained press can effectively expose the deception in Government.”
The High Court of Kenya adopted the test used in the Canadian case of R vs. Oakes, (1986) JSCR 103, according to which for a limitation on a fundamental freedom to be upheld, it must be established by law, its objectives must be reasonable, and the limitation must rationally related to those objectives.
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