Commercial Speech, Content Regulation / Censorship, Licensing / Media Regulation
Irwin toy ltd. v. Quebec
Closed Expands Expression
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The African Commission on Human and Peoples’ Rights (“ACmHPR” or “the Commission”) held that Nigeria violated the rights to receive information and freedom of expression by issuing a Decree that granted the Newspaper Registration Board broad discretionary powers when deciding whether to register a newspaper. Similarly, the ACmHPR held that Nigeria violated these rights by seizing 50,000 copies of a magazine and issuing a Decree proscribing specific newspapers. The case arose during a military government in Nigeria after the annulment of the elections of 12 June 1993. The Commission considered that the discretionary powers afforded to the Registration Board invites censorship as it effectively allowed the government to prohibit any newspaper or magazine they wanted. The ACmHPR reasoned that the proscription of the newspaper was not a limitation “within the law” since the Decree was made to apply to a specific individual or legal personality, raising concerns of discrimination and equal treatment before the law. The ACmHPR stated that the seizure of 50,000 copies of a magazine was not an appropriate measure if the government considered the article a mere insult.
In addition, the ACmHRP held the violation of Articles 6, 7.1(c), and 16 of the African Charter in relation to the arrest and detention of TELL magazine’s Editor in Chief, Mr. Nosa Igiebor, who was kept in detention without being informed of any reason and without any charges being made and was denied access to his lawyer and doctors despite a deteriorating health condition.
General Facts as submitted in Communications 105/93, 128/94, and 130/94
The events of this case took place after the annulment of the Nigerian elections of 12 June 1993. The government issued several decrees proscribing two magazines and 10 newspapers published by four media organizations. State officials conducted “frequent seizures of copies of magazines critical of its decisions,” sealed its premises and those of the newspapers, and arrested newspaper vendors that sold the impugned magazines. [para. 1] On 16 August 1993, the government issued the Newspaper Decree No. 43 of 1993, voiding the registration of all existing newspapers under the Newspaper Act and proscribing owning, publishing, or printing an unregistered newspaper with a punishment of either a fine of N250.000, a term of 7 years of imprisonment or both.
The Newspaper Registration Board established under the Newspaper Decree had the sole discretion to determine whether a newspaper registration is “justified having regard to the public interest.” [para. 5] Moreover, the Decree did not establish any procedure for challenging the Board’s decision. In the case of a positive decision, the newspapers were still required to pay a registration fee of N100.000 and make a deposit of N250.000 to respond for any future penalty or damages award imposed by a Court of law against the owner, publisher, or printer of the newspaper. Under the previous law, only a N500 bond with sureties was sufficient to face possible penalties or damages.
The Newspaper Decree obliged owners, printers, and publishers to apply for registration within three weeks of the commencement of the Decree. Although it was published on 16 August 1993, it had retroactively established 23 June 1993 as its commencement date, rendering all newspapers in Nigeria “immediately ‘illegal’, and owners, printers and publishers liable to be arrested and detained”. [para. 7] In addition, on 17 November 1993 the government issued Decree no. 107 on Constitution (Suspension and Modification), providing in its article 5 that “No question as to the validity of this Decree or any other Decree made during the period 31st December 1983 to 26th August 1993 or made after the commencement of this Decree or of an Edict shall be entertained by a court of law in Nigeria.” [para. 3] Similarly, it issued Decree No. 48 which proscribe around 10 newspapers without providing any due process.
Specific facts of Communications 128/94, 130/94 and 152/96
Communications 128/94 and 130/94 refer to the seizure of 50,000 copies of Tell Magazine on 2 January 1994. TELL is a popular Nigerian weekly magazine dedicated to the promotion and protection of human rights. On the week of the events, the magazine published a critical issue on the military government’s legislation ousting the jurisdiction of the Courts. The issue was entitled: “The Return of Tyranny – Abacha bares his fangs.” [para. 8] Heavily armed policemen and security officers seized the 50,000 copies on the printer’s premises and confiscated twelve films and fourteen plates used for processing. [para. 8] TELL was declared illegal for failing to register under the Newspaper Decree.
On 18 November 1993 and 5 December 1993, the Ikeja High Court, and the Lagos High Court, respectively, declared the Newspaper Decree null and void. The government did not challenge these decisions. However, on 23 December 1995, the Editor in Chief of TELL Magazine, Mr. Nosa Igiebor, was arrested and detained without being informed of the reasons for his arrest and without charges. Although his health was deteriorating, he did not receive any medical assistance and was denied access to his family, doctors, and lawyers.
In this case, the ACmHPR had to decide whether the decree imposing new registration requirements and procedures, as well as those prohibiting certain newspapers, violated article 9 of the African Charter.
Although the State did not submit written submissions in this case, at the 19th Session of the Commission, a State representative made the following statement in relation to the communication: “It is in the public interest that all newspaper providers or publishers should ensure registration of their enterprises. The government is convinced that such registration fees are reasonable and justifiable in any democratic society.” [para. 13]
The ACmHPR did not categorically disagree with the State and considered that the requirement of a registration fee and a pre-registration deposit to face penalties from libel actions are not in itself contrary to the freedom of expression. [para. 55] The Commission pointed out that “the amount of the registration fee should not be more than necessary to ensure administrative expenses of the registration, and the pre-registration fee should not exceed the amount necessary to secure against penalties or damages.” [para. 56]. It considered that whereas excessively high fees constitute a restriction, in this case, although high, they are not “so clearly excessively that they constitute a serious restriction.” [para. 56]
The ACmHPR expressed its concern with regards to the discretion and finality of the Newspaper Registration Board decisions. The Commission considered that this discretion effectively gives the power to prohibit any newspaper or magazines which in turn “invites for censorship and seriously endangers the rights of the public to receive information” under Article 9.1 of the African Charter and, therefore, declared the violation of the said provision.
On a similar note, the Commission expressed serious concern about the retroactive effect of the Decree. While the Government argued that no one was condemned under the Decree, the Commission considered that Article 7.2 of the Charter does not only prohibit condemnation and punishment for acts not constituting a crime at the time they were committed but retroactivity itself. The Commission held that Decree No. 43 violates Article 7.2 of the African Charter not without emphasizing the undermining effect of retroactive laws on the rule of law even when they are unenforced. Similarly, it held that by failing to comply with the domestic courts’ judgments declaring the Decree null and void, the Nigerian Government violated Article 7.1 of the African Charter.
The Commission then moved on to Decree No. 48 which proscribed approximately 10 newspapers and allowed for the sealing of their premises without being afforded the opportunity to defend themselves and without being previously accused of any wrongdoing. The Commission recalled that although under Article 9.2 the dissemination of opinions can be restricted by law, “this does not mean that national laws can set aside the right to express and disseminate one’s opinion”. On the contrary, to allow national laws to have precedent over international law would render the protection afforded to those rights under the African Charter ineffective. Therefore, the Commission stated that any limitation to the rights recognized in the Charter must conform to the provisions of the said instrument.
The ACmHPR explained that Article 27.2 of the African Charter establishes legitimate restrictions as those that “shall be exercised with due regard to the rights of others, collective security, morality and common interest”. It further considered that any limitation must be strictly proportionate with and absolutely necessary for the stated objectives, and it may never render the right illusory as a consequence. In this sense, the Commission found that the government did not provide any evidence that the prohibition was consistent with Article 27.2. Having in mind that Nigerian law allows individuals to pursue libel suits when the need arises, the Commission considered that “for the government to proscribe a particular publication, by name, is disproportionate and uncalled for”. [para. 71] In particular, the ACmHPR highlighted that laws made for “one individual or a legal personality raise the serious danger of discrimination and lack of equal treatment before the law, guaranteed by Article 3”. [para. 71] Therefore, the Commission found that the proscription of “The News” was not a limitation “within the law” and, as such, constituted a violation of article 9.2.
With regards to the seizure of 50,000 copies of TELL magazine, the Commission considered that the government did not provide any evidence that such seizure was for any other reason than the critical nature of that week’s issue. The Commission stated that the article in question, although critical to the government, did not contain any information that might have threatened national security or public order. It pointed out that perhaps the only person whose reputation might have been tarnished was the head of State. However, until proven otherwise, it should be assumed that such criticism does not constitute a personal attack on the head of state. In this sense, the ACmHPR stated that “people who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether.” [para. 74] As such, the Commission considered that a libel action would have been more appropriate if the government thought of this particular article as a mere insult instead of seizing the whole edition before publication. Thus, by seizing the magazine the government violated Article 9.2 of the African Charter. In addition, the Commission held that the seizure of these publications and the sealing of the magazine premises violated the right to property under Article 14 of the Charter.
With respect to the arrest and detention of Mr. Nosa Igiebor without being told any reason and without any charges being made, as well as the denial of access to his lawyer and doctors, the Commission held that the State violated Articles 6, 7.1 (c), and 16 of the African Charter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by affirming that the total discretion vested to the registration board invites censorship. Similarly, the decision affirms that the proscription of a specific newspaper by law is inconsistent with the African Charter and the “within the law” requirement for the limitation of freedom of expression and information. Third, the Commission considers the seizure of 50,000 copies of a magazine an inappropriate measure and recalled that people in highly visible public roles must face a higher degree of criticism than private citizens.
In its decision regarding Communications 140/90,141/94 and 145/95 (Constitutional Right Project et others vs Nigeria), the Commission reaffirmed these standards by concluding that the proscription of specific newspapers and sealing of its premises without allowing them to defend themselves in a hearing amounted to journalist harassment. It stated that such acts not only impact the directly affected journalist’s right to disseminate information, but it poses a risk of self-censorship by those not yet affected by the decrees, but who wish to continue conducting their work. The ACmHPR reiterated that the proscription of a particular publication by name is disproportionate, not necessary, raises discrimination concerns, violates equal treatment before the law, and thus violates Article 9.2 as it cannot be said to be “within the law”.
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