Freedom of Information: A Comparative Legal Survey - Federation of ...

Features of a Right to
Information Regime
It was argued in the previous chapter that the right to information, and particularly the right to access
information held by public bodies, is a fundamental human right, guaranteed under international law as an
aspect of the right to freedom of expression. This chapter probes in detail into the framework of standards
that should underpin right to information legislation. A number of important interpretative principles have
been established in the context of the right to freedom of expression. Further insight into the specifi c
content of the right to information may be gleaned from the various international statements and legal
judgments on the right to information noted in the previous chapter. These sources may be supplemented,
where appropriate, by established comparative practice on the right to information.
The general guarantee of the right to information under international law, noted in the previous chapter,
establishes a general presumption in favour of the disclosure of information held by public bodies. This
implies not only that States should guarantee the right to information, but also that effective systems be
put in place to give practical effect to it. As Article 2(2) of the International Covenant on Civil and Political
Rights (ICCPR), 137 notes:
Where not already provided for by existing legislative or other measures, each State Party to the
present Covenant undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such laws or other measures
as may be necessary to give effect to the rights recognized in the present Covenant.
International jurisprudence on the general right to freedom of expression makes it clear that positive measures
may be required to implement this right. For example, international courts have often held that States must
not only refrain themselves from engaging on attacks on the media but that they are also under a positive
obligation to prevent such attacks from taking place. 138 Positive obligations have also been established in
relation to employment situations 139 and various other contexts. 140 The cases noted in the previous chapter
establishing a right to information all relied on a positive obligation of States to implement human rights.
At the same time, the right to information permits of some restrictions. Article 19(3) of the ICCPR states:
The exercise of the rights provided for in paragraph 2 of this article [the right to freedom of
expression] carries with it special duties and responsibilities. It may therefore 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.
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