Study of the Concepts Related to the Boundaries of Freedom Expression

The right of freedom of expression can be named as one of the most important rights and freedoms that have been emphasized on by all the international documents of human rights. Despite the fact that the aforementioned right is a universal right, most of the experts believe that it cannot be absolute and in order to be able to support the public and private rights, it must be restricted to some extent. Now the question is that the restrictions on the freedom of expression are needed to be implemented in what frameworks and based on what principles? In reply to that question we can say that ethics, national security, public order and preservation the rights and reputations of others are the key principles of restrictions on freedom of expression.


Introduction
Freedom of expression, as the right to express the individual beliefs and ideas of people about the subjects with general aspects, that is an essential and integral component of the democratic process or as the European Court of Human Rights has repeatedly stated it, is known as "one of the important and vital foundations of the democratic society".This fundamental freedom is considered essential in the development and promotion of the individual character, and without which, the free discussion and exchange of views and ideas would be impossible.As it was mentioned, in democracy the right to freedom of expression is not only an individual's right, but also the right to the community to hear the voices in this way and become aware of them.This freedom has also been mentioned in the legal literature as the origin and the overwhelming prerequisite of any other type of freedom and it has been said that "enjoying freedom and the right to protect it is that the individuals feel free to express their thoughts and show their feelings openly." Today in praising the freedom of expression and respecting it, the philosophers, religious and secular legislators do undoubtedly believe that there should be some restrictions to it and they think that unconditional freedom cannot satisfy the interests of the community.Although ensuring and respecting the freedom of expression as a fundamental human right given to him by others especially the government might be an obvious matter for many, it needs to be supported and justified, because once recognizing the high position of the freedom of expression, apart from banning any arbitrary abuse of it, even the law will not be allowed to find itself open-handed in restricting the freedom and so any limitations to it will be regarded as an exception which requires some reasons and justifications (Aghabakhshi and Afshari, 2004, p. 52).Now that the necessity to determine the limits to freedom of expression is quite obvious and accepted, the question is that how and according to what principles the freedom of expression can be limited?Can any legal limitation be freely interpreted and based on that interpretation can the scope of freedom of expression be constricted?In this article we are in search of finding answers to these questions.Although many principles may be considered in restricting the freedom of expression, the most important issues are the national security, ethics, public order and the rights and reputations of others that will be dealt with in this paper.

Ethics
Of all the restrictions on the freedom of expression, ethics is the only limitation that has been emphasized on in all the international documents of human rights.Article 19 of the Universal Declaration of Human Rights, Act 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights and Article 13 of the American Convention on Human Rights have accepted ethics as a red line for freedom of expression.According to the general policy and the principles of TV and radio programs, the IRIB in Iran is required to comply with ethical issues.
Without a doubt, one of the most important principles of restrictions on the freedom of speech is the moral issues that are specifically considered significant in the laws of all countries and the ethical issues usually bring some limitations to the freedom of speech.With regard to the moral issue which is one of the most significant principles in limiting the freedom of speech that can influence this freedom, the answers to the following questions seem necessary.What is morality?Are there any moral schools and theories?Is morality a constant concept in all countries or it may differ from one country to another?And, which aspects of freedom of expression may hurt morality?

Definition
Morality has been defined differently by different pundits some of whom will be mentioned in this paper.Some of them know morality as the behavioral methods of an individual, a group or a community which can be a derivation of the value system.According to this definition, amoral is a person whose behavioral methods are inconsistent with the dominant values of the society (Sullivan, 2001, p. 82).There is an ambiguity in this definition wondering that this moral system has been engendered by the community or a special group.Whether the value system is an absolute system formed by a higher authority of the community and the individual has to move within that framework to reach evolution?
Others regard morality as a set of rules that has been created in some periods of life of a community based on the nature and various thoughts of that community and the individuals respect them and more or less they come into force and any violation of them can offend the conscience of the majority, the principles they consider are promoting goodness and disposing evil and they may respect the law principles without going into the details.In a community, if morality embraces the public behavior without being devoted to a certain area or group, then it can be called morality (Sullivan, 2001, p. 95).
It seems that morality and the moral issues depend on the interpretation of communities and various groups and every community owns a kind of morality specific to it and the moral issues are different and even contradictory from a community to another; there might be a matter that is considered moral in one community, while it is immoral in another; acceptance of this contradiction is not inconsistent with the general principles recommended at the global level for all schools and cultures.Next section deals with explanation and assessment of the ethical theories and schools.

Ethical Theories
Morality is one of the most important and the most disputing concepts in the humanities, in particular in philosophy.Ethics has many branches and attitudes.Morality has been discussed from various aspects by pundits; therefore there are different definitions for it.A question that can be raised here is that when we introduce morality as a restriction to the freedom of speech, which morality is meant and the freedom of speech in the IRIB must be constricted based on what ethical school?Is morality a fixed issue for all times and places?
There are two general attitudes of relativist and absolutist on morality: relativism means what is considered true for an individual, a group or a culture may not be regarded true by other individuals, groups or cultures; if the moral good and evil are different from person to person, it is called "extremist relativism" and if it differs from a culture to another, it is called it "cultural relativism" (Holmes, 2003, p. 318).On the other hand, by absolutism we mean a moral rule is eternal and constant for the nature and it is the same for the whole people in every time and place.This rule is valid regardless of the thoughts and feelings and even regardless of the existence of mankind (ibid: 319).In other words, in absolutism the ethical regulations are fixed in any time and place, just like the mathematical rules; as 1 + 1 equals 2 under any conditions in any time and place, for example, telling lies is amoral too in every situation.
Acceptance of any of these views has its own effects on the freedom of expression.Once accepting the theory of relativism, it is clear that these are the people in different communities that specify the morality of a matter and in this way, there would be no absolute moral principles.In this case, the transnational institutions cannot play a significant role in moral recognition of a matter, however accepting the moral absolutism, we can depict a single moral pattern for the whole mankind, and transnational bodies in this case can play a significant role.

A Reference to Set the Moral Boundaries
In the previous section we got a brief familiarity with two approaches of relativism and absolutism in relationship with ethics.Relativism has got various alternatives and each scholar considers it differently.Some schools that are within the boundaries of moral relativism include the school of hedonism and the school of emotionalism (Moalemi, 2001, p. 28).In contrast to the relativistic theories, the absolutistic approach involves such schools as Islam school, Kantian school and Epicurus school.
A question that is raised here is that when we propose morality as one of the limitations on the freedom of expression, what kind of morality is meant by us and the freedom of expression should be restricted based on the teachings of which ethical school?
Human Rights Committee also emphasizes on the matter that "the scope of public morality is widely different and consequently there are no shared global standards" (Naghib, 2011, p. 114).This is why when analyzing morality, understanding and evaluating the performances of individuals, we should morally pay attention to the judgment of the people of that society about that performance.Kant truly reminds that "the mark of correctness of any philosophical analysis of morality is the loyalty to the moral judgment of the ordinary people" (Sullivan, 2001, p. 159).Therefore, when it comes to the legal action and judicial approach treatment, the national authorities are qualified to deal with it and the national authorities would in turn consider the judgment of the majority of the community in determining what is moral or immoral, and the views of the majority will be involved in morality or immorality of an action (Azari, 2005, p. 34).The Committee for Human Rights emphasized this concept in Hertzberger claims against Finland (Zeraee, 2009, p. 27).
Although we can say that there are some ethical principles that have always been respected in all human societies in all times, and they can be called universal or absolute principles of morality regardless of any religion, race, location and time humanity considers lie, for example, as an amoral action, therefore honesty is one of the absolute moral principles and is universally valuable, yet the fact is that morality takes root from the culture, religion, history, literature and rituals of a community all of which may differ from one community to another, so no single moral exemplar can be considered for all societies and this is the acceptance of relativity of ethics.

The Relationship between Freedom of Expression and Ethics
As it was mentioned earlier, the expression and manifestation of the individual ideas, thoughts and beliefs to others in any way is possible.It is well known to everybody that as all the inventions, behavioral, vocal, artistic and intellectual activities can be beneficial for the individual and the society where he lives in, and in a broader sense for humanity, it can also have several adverse effects on and harms to the life, physical and spiritual integrity of him and other human beings around the world.In such a situation, ethics comes to the scene and the collective living circumstances require some legal and moral principles and common rules to be formed to provide the possibility of peaceful life with sincerity and without any tension in the human relations (Rahbar, 2002, p. 132).
Today the governments with the aims of supporting the children, prevention from the publication of the contents that may violate the personal and social criteria (public morality), dealing with anomalies such as pictorial pornography on internet, try to appreciate the most sublime principles of morality through filtering, blocking the sites, encryption, encoding the speech and censorship of the electronic phrases.Every entity offers some justifications in favor of each of these methods, for example in some countries as the U.S the theory of "inclusiveness" is utilized since they believe that content control in internet is possible just like TV and radio and this theory states that when the communicative technology comes to home must be neat and safe for household consumption (Rahbar, 2001, p. 134).
In this way, on February 8 th , 1996 the president of the U.S, Bill Clinton, signed the Merit Act in communications after passing the bill of deregulation in the communications after the Senate and Congress' ratification, based on which publishing inappropriate or confidential texts and images on the Internet was limited.The Government of Singapore in June 1996 legally forced all the internet service providers to be registered in the registry office and to be ensured that they do not offer pornography on their networks and are committed to their work.Also, laws were passed and resolutions were presented in Germany, Japan and the UN General Assembly in protection of the minority (children) and the harmful contents and information to teens and children were banned.The discussions above verify the need to consider the ethics and the observance of the ethical interests and restricting the freedom of expression and avoidance from the statements that are contrary to moral interests.

National Security
National security is another restriction to the freedom of expression that has been taken into consideration in the Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights, Article 13 of the American Convention on Human Rights, Article 27 of the African Charter on Human Rights.Striving to provide the most basic concerns of the national governments is one of the basic concerns of the governments and of the most important principles of their foreign policy.Uninterrupted efforts to provide the national security or expanding its range are one of the priorities of the countries in the field of international relations.
1.2.1 The Concept and Nature of National Security National security is an American concept that was introduced after the World War II (Azar, Edward E., Chung Lin, Moon, 2000, p. 11).This term, such as many other concrete terms, was applied from the very beginning of its popularity in a way as if it had an evident and obvious concept while it might be difficult to be changed into operational words (ibid: 331).
Therefore, the definition and analysis of the concept of national security has a brief history and basically after the World War II onward the researchers of the social and political sciences turned to this concept as an analytical concept and as a research field (Rowshandel, 1995, p. 5).
With regard to the factors impacting the national security, that include mainland, population, and the political system, some authors consider the components as protection of the people's life, protection of the territorial integrity, protection of the economic and political systems and protection of the independence and sovereignty of the country as the main components of national security.
There are many reasons for different viewpoints among countries on the goals of national security.The power, geographical location, population, the economical situation, the administration type, the nature of government and the historical traditions and customs and ideologies are some factors that may influence the orientation of the security purposes for a country.Because these factors are dynamic and may change through time, the date and time element has to be added to them.This is why the countries and governments have different views on security and it is even probable for one country to change it view point on security at any moment (Rowshandel, 1995, p. 5).
National security has been defined as the sense of freedom of a country in pursuit of the national goals and the lack of fear and threat from the outside to the fundamental and essential interests of the country.The concept of national security in this definition depends on the definition of freedom, ideals and vital national interests of the country.Hence the national security is perceived as important in every country according to the interpretation of these concepts (Aghabakhshi, 1984, p. 173).
Many of those who are called realist consider the national security as a synonym for the military security.This view of security that just emphasizes on the components as the foreign enemy and legitimate national interests seems simplistic for many.The interpretation of national security is always applied along with the terms as national interests, vital interests, fundamental values and etc. and it asserts the fact that today this concept has taken much broader dimensions and cannot be analyzed anymore with definitions like the one resented above.During this process, security has come out of the one-dimensional limitation and has manifested in the concepts, principles and norms with different cultural, social, political and economic dimensions.In other words, security has embraced the personal, social, humanitarian and cosmopolitan levels in addition to the government centeredness and focus on the military aspect (Rabiee, 2003, p. 124-126).
New discourse on national security is heavily influenced by the process of globalization.In this discourse, security is not any more defined in the absence of threats, but on the basis of the positive nature it implies the existence of reassurance to citizens.Unlike the negative discourse of security whose main component is the absence of any threat to the vague interests, security is reduced in the positive discourse to an inferior rank and is defined in the light of other variables such as power.From this perspective, national security refers to a series of natural, operational and strategic capabilities of a system for achieving the national interests and lack of threat is an introduction to its realization.

An Overview on the Ratio of National Security and Freedom of Expression
Although freedom of expression is today a basic and important right to mankind, in many cases the publication of a book or showing a movie can easily and basically challenge the national security hence it is necessary to restrict the freedom of expression in the case of inconsistency with the national security because national security is a vital matter in the light of which freedom of expression and other fundamental rights can be recognized.On the other hand, security has today taken various forms of political, military, economic and etc.For this reason, sticking to the concept of national security is the most deceiving excuse for extinguishing the dissenting voices.Typically, one of the most important justifications of the dictatorship in suppressing the flow of independent information and expression is referring to the concept of national security.Therefore the national security is needed to be interpreted very briefly in restricting the concept of national security in order not to sacrifice the freedom of expression in the name of national security.
Although the national security and freedom of expression are often arisen at odds with each other, on one hand the governments sometimes feel threatened of the domestic violence or external threat, so it may find the disclosure of confidential information or expression of critical opinions as a cause to weaken many of the institutes that are engaged in providing safety and welfare of citizens.On the other hand, the human rights defenders disagree with it and consider it as a threat to the real peace (Kuliver Sandra et al, 2000, p. 182).So undoubtedly there is a tension between the national security and freedom of expression.A transparent review of the history however indicates that once people can become aware of the government decisions through the freedom of the press, protection of the legitimate interests of the national security will be easier because the freedom of expression actually scrutinizes the government's actions and in this way it can form an important component of the national security and conversely the national security is the prerequisite to the full enjoyment of all human rights involving freedom of expression (ibid, 186-187).
Appealing to the national security by governments as a reason for imposing restrictions on the freedom of speech is forbidden if it does not have a legitimate target, or any relationships with the national security.Hence, what is objectionable is that the national security and the concepts related to it are so ambiguous that most governments benefit from them to prevent disclosure of the facts that are against the government.

Protection of the Rights or Reputation of Others
The citizens of a community are free in their actions and behavior to the extent that it does not hurt the others' rights and freedoms.In other words, since the actions of an individual is relevant to others and interfere in the others' rights and freedom, in the name of freedom it cannot be permitted and legitimized.Therefore, for providing all segments of the society with freedom, it is necessary to confine this freedom with some restrictions to support the interests of all segments along with reserving the interests of the community.
John Stuart Mill believes that an individual's freedom is restricted by the equal right of freedom for another person.The discretion and freedom of any person in the activities that are merely related to him, such as freedom in tastes and interests and beliefs, is unlimited while there are some actions whose results may spread to others too.In such cases the freedom of people is not unrestricted.The individuals are not free to commit the actions that may hurt others.So in case of such harms, the community has the right to intervene and punish the trespassing person (Mill, 2006, p. 114).
Although the international documents mainly speak of rights, when appearing in the social scenes of the communicative life of people and find a practical context, these rights will control each other.In other words, the right of each person is extended to the boundaries of another person's right and can stops there, and although the people in the community have the freedom of expression and this freedom is at first a right, but the realization of the right of freedom of speech may cross the right of concealing the family secrets, and this is the point where the right of freedom of expression is banned in consideration to the need to keep secrets of others.In addition to that, in the normative system of human rights, the right is usually meant the right to claim which requires the sense of responsibility or commitment in another individual.In this normative system, the individuals are committed to respecting the rights of others.Therefore, the individuals' freedom, involving the freedom of expression, is ended where the other's rights begin.The people are free in conveying their information as far as they do not exceed the rights and dignity of others in the society.
In addition to the human rights, reputation, honor and dignity of human beings are also other borders that people of the community should consider in their social life, and when enjoying their rights and freedoms, they should try to respect it and never exceed it.
Dignity and reputation of human beings is highly important such that the whole theory of human being is based on the inherent dignity and prestige of human because the equality of human beings in recognizing the rights and duties on which the Rawls's theory of justice is based is founded on the equality of human beings in the human dignity and on the principle of essentiality of human and the prohibition of the abuse of human in Kant's theory (humanity is an extremely essential goal).

The Restrictions of Others' Reputation
Another limitation on the freedom of speech from the view point of the international documents of human rights is the reservation of others' rights and reputation that have been emphasized on in the Article 19 of the Universal Declaration of Human Rights, the Article 19 of the International Covenant on Civil and Political Rights, the Article 10 of the European Convention on Human Rights, and the Article 13 of the American Convention on Human Rights.
What can be seriously considered in the discussion on the freedom of speech is how far can the concept of "reputation" proceed?Can we even confine the scientific interpretation in the excuse of respecting the others' reputation?It is worth mentioning that in many of the individualistic and authoritarian governments even the scientific interpretation of the theoretical ideas of the governors might be interpreted as an insult to their reputation or even as threats to the national security.For example, in several of the former communist regimes, in addition to the political analysis, the governors commented on the social, ethical, philosophical, international and legal relationships.In these countries, the individuals were not even free to express the general criticisms about or comprehensive comments on the perhaps incorrect opinions of the governors in various professional fields.This condition can be intensified because of two reasons: Firstly, the governors in such countries have tied all the economic, social, and cultural issues somehow to the political affairs (because they could only justify their disabilities and incompetence through combining their political dignity and authority), and secondly because of the aforementioned reasons in these communities everything is "political" and " politicized"; as one of the scholars had painfully said in the country even smelling a red rose is a political act.So the possibility of any criticism on the heads of state could be prohibited under the pretext of attacking the reputation of the heads of state and at last the in excuse of the threat to the security and national unity (Ghari Seyed Fatemi, 2011, p. 152).
Therefore it is unacceptable to ban any type of discussion and criticism in the community in the excuse of the others' right and put the rights and reputation of others as a pretext for tyranny, so the others' rights should be explained accurately because it may have a wide interpretation like ethics and national security and ban the way to any discussions in the society.

The Conflict of the Freedom of Expression and the Rights of Others
There is no doubt that through applying and exercising the right of freedom of speech, the individuals, in addition to ignoring the others' reputation, may attack other rights of people.For example, the rights of intellectual property can be mentioned as another right supported by the convention.The International Covenant on Civil and Political Rights in the third paragraph of Article 15, obliges member states to support the intellectual property rights which is the requirement of restricting the freedom of expression to people.You should not forget that expression in a broad sense involves various types of vocal, pencil, artistic, and literary expressions and the freedom of expression involves various types of press.
It should be explained that the guarantee of the right to intellectual property and, naturally restrictions on the freedom of expression to people in this framework requires a specific legal system.In fact, the legal systems for resolving the conflicts of rights through designing a justified legal system should balance the freedom of expression of people in one hand and the rights to intellectual property of other citizens on the other hand.Creating such a balance is a complicated work that requires the compliance and consideration of several factors.In fact, the results of the human rights view on the system of intellectual property on one hand, and the intellectual property-oriented look on the human rights system on the other, can lead to the adjustment of the right to the freedom of expression and the intellectual property right.A discussion similar to the intellectual property can be raised in resolving the conflict between the right to freedom of expression and other rights of citizens.In fact the renewal of the freedom of expression of the citizens, for example, in relationship with the others' reputation right will raise another sensitive discussion of determining the territory of rights in the framework of conflict of rights.

Exceptions to the Rights and Reputations of Others
In the violation of the rights and reputations of others, more attention should be paid to the conditions of violation and the person has been violated and in this way a few exceptions can be added to the prohibition of violation in the rights of others, for example commenting on the case of a normal person cannot be equivalent to commenting on a presidency candidate.
The French Court had some regulations in this regard: "with regard to the provisions of Article 10 of the European Convention on Human Rights, protection of the name and political credit of a politician should be adapted to the free discussion and applying it to the right of voters.Therefore the intention of clarifying some problems related to a candidate is an action justifying goodwill provided that the considered charges in a political discussion would relate to the political actions of the intended person, without any violation of his personal life and provided that the declared information is undistorted.It should be mentioned that the judgmental procedure of the European court expands it to all the discussions related to the general discussion (Watchman,2009, p. 32).Also, expressing ideas and special comments on the performance of the governmental bodies may sometimes be "involved in the freedom to criticize the performance of these organizations", and the French Court in a vote on March 23, 1978 about the case of the Minister of Justice who had objected the judgment syndicate that had accused him of dividing, the defence of having goodwill was accepted from him due to non-compliance with prudence and caution in his comments and only by considering the subject of his words (ibid, 33).Generally, the desecration of deterrence in any case involves some important exceptions and in some cases it requires an extensive authority in taking part in the free discussions relating to the public domain that may have tried to mislead this concept.

Public Order
Article 19 of the Universal Declaration of Human Rights and also Article 19 of the International Covenant on Civil and Political Rights the public order has been recognized as one of the restrictions on the freedom of expression, but of the regional instruments on human rights only the American Declaration in its Article 13 notes this restriction and the European Convention on Human Rights has not clearly and explicitly regarded the public order as a limitation to the freedom of expression.
Sometimes we encounter the terms and expressions in the law that unlike their important role and application enjoy a kind of ambiguity, and the "public order" is one of them.This term has not been defined in many statutes, and it has caused many troubles for lawyers in providing a clear and comprehensive definition of it and the success of this group has been confined to providing a general definition.This trouble can also be seen in the stage of determining the examples of the public order.The public order is directly related to the pillars of civilization and morality of the society and it is different from a community to another and this has caused the comprehensive understanding of the public order more difficult.
The concept of public order is ambiguous for the following reasons and so defining it is difficult.a) Public order is an issue related to ethics, politics, economy and the principles of civilization governing a country and since these matters differ from one country to another, the concept and examples of public order will be consequently different from a country to another.This relativity is not only a spatial relativity, but also a kind of time relativity; it means that in one country the concept and example of the public order may change in every time period; therefore there is no fixed rule for knowing this concept.
Most of the regulations and lawyers are disable to provide a comprehensive and collectively acceptable definition.Article 30 of the German Civil Code defines the public order as: "rules that are linked to the principles and foundations of social or political or economic system of the country and are related to the concept of these principles at a certain time."Jafari Langeroudi recognizes the public order as a collection of the legal agencies and rules relevant to the good flow of affairs in governing the country and preservation of security and ethics that may not be exceeded (Jafari Langeroudi, 1998, p. 717).
Many scholars have preferred not to define this term and to leave it to the judges.For example, Article 163 of the Civil Code of Jordan mentions only some examples of the public order and Article 975 of the Civil Code of Iran has provided no definitions or examples in this regard and has apparently left the detection of the cases of violation of the public order to the judges, so now it is clear that determination of the exact scope of the public order and its examples is not an easy task.
The provided definitions are so ambiguous that we cannot rely on them in clarifying the public order.Yet, we can say that the judge would have a key role in recognizing the examples of the public order of his government although we should accept that the magistrate in this course would refer to the ruling thought of the community and the general interests of his country instead of the personal interpretations.And also when the talk comes to the public order and freedom of expression, it should be taken into consideration that the freedom of expression is a principle and the restrictions are its exceptions in order not to let the public order become a tool in creating stifling.
The final point is that it is obvious that the freedom of speech can disturb the public order.Some lawyers like Morris Horio believed that: "the public order is meant to be the police, material and foreign order", this is while with a broader look we can put the spiritual elements in the concept of public order as well.The basic point that should be considered is that the position and credit of the elements making the public order can be different from one place to another.The disturbing elements impairing the public order of a strongly religious community, for example, like the religious public order in Iran, is not equal with the secular public order like in France (Gorji, 1995, p. 105-107).

Conclusion
regarding the fact that the issues like ethics, public order, and national security that have been named in the international documents of human rights as the limitations of the freedom of expression right, they do not seem to be able to specify the restrictions of the freedom of expression correctly so there are always the opportunity for abusing the powers in restricting the freedom of expression right.Therefore what can ban the abuse of powers in the international system of human rights and in the internal system of countries, in a way that they cannot easily deprive people of their legitimate rights and freedoms is the conditions governing the imposition of limitations that specify the limitations that are needed to be legally carried out regarding the requirements of a democratic community, as it was mentioned earlier in the article, the American Court of Human Rights has taken long steps in suppressing the freedom of expression through interpretation of the word of law that knows it as embracing all the rules and regulations.