08保密

我们必须被赋予权利来挑战以国家安全等理由对信息自由所做的一切限制。

我们必须有权利挑战一切对言论自由所做的限制。但我们所提到的三个限制理由——国家安全、公共秩序和道德观念——并不是随意选择出来的。无论是在民主国家还是非民主国家,在限制言论自由时,这三个理由都是使用频率最高的。同时,这三个理由也是《公民权利和政治权利国际公约》第十九条明确提到的“由法律规定”并且“所必需”的条件(还有很少被祭出的“公共卫生”和他人的“名誉”,参见“原则七”)。但是,谁来决定是不是必需呢?

哪怕是签署并通过《公约》的国家(参见我们的地图)在限制言论自由时也常常把其中的条款作为一个有弹性空间的大框架。在集权主义国家和政治学家所谓的“混合制”国家(即民主元素和威权元素并存的体制)中,这样臭名昭著的例子不胜枚举。实际上,此类政权的一个标志性特征就是缺少立法或其他手段来约束这些限制,而且滥用这些限制打击对政府政策的正常批评。在穆巴拉克下台后的埃及,博客作者仅仅因为批评军方就会被关进监狱。

煽动、 保密、恐怖

在民主国家中也有不少例子。全世界最大的民主国家印度就继承了英国殖民时期制定的《刑法》第124A条这一含混的条款来对付异议人士(那时甘地就称之为“《刑法》政治章节中压迫民权的条例之冠”。) 包括Arundhati Roy(点击这里阅读其访谈) 在内的作家和活动家都深受其苦。2011年,南非政府提交了一部保密法草案,其中就有泄密最高判处25年徒刑这样的恐怖条例(点击这里阅读案例研究)。

在主要的西方国家中,针对2001年“9-11”恐怖袭击”以及后续的马德里和伦敦爆炸案的应对措施以国家安全和公共安全的名义限制了言论自由。在美国,说辞是“对恐怖主义作战”,或者说是以此为比喻。在不少场合,“战争”或者“全国紧急状态”都用来作为限制的理由,而这些限制在和平时期是不可能被接收的。可是谁来决定什么时候是“战争”或者“紧急”状态呢?笔者撰写此文时,瑞士已经进入“全国紧急状态”38年了。埃及从1981年到2011年都处于“紧急状态”。直到2012年初,军方才解除紧急状态,但也只是部分解除而已。

美国学者Geoffrey Stone在《危险时刻:战时的言论自由》(Perilous Times: Free Speech in Wartime)一书中认为,即使在小布什执政时期,美国宪法第一修正案对反战言论依然有所保护。但美国所谓的《爱国法》 (Patriot Act)和其他措施却被用来绕过审判对一些恐怖主义嫌犯实施监禁,并对电子信息进行全面收集。

在英国,23岁的希思罗机场店员Samina Malika写了几首血腥的打油诗。她自称是“诗歌恐怖主义者”,并从网上下载了一些内容具有煽动性的圣战主义资料,结果被依据反恐法定罪(经上诉后,有罪判决被驳回)。2006年的《恐怖主义法案》(2006 Terrorism Act)甚至认为赞美恐怖主义也应该被视为犯罪。有评论家指出,如果诗人叶芝还活着,他可能已经因为在诗歌中赞美爱尔兰1916年反抗英国统治的复活节起义而触犯这条法律被治罪,当时这些起义者在英国政府眼中就是恐怖主义份子。(原诗:麦克多纳和麦克布莱德,还有康诺利和皮尔斯, 不管现在或是未来, 只要还有地方将绿色佩戴, 都会改变,彻底改变: 一种恐惧的美已经诞生。 )

公共秩序与道德观念

人们通常以“公共秩序”为名限制言论自由。本网站还有几篇文章介绍过,英国以《公共秩序法》(Public Order Act限制过一些理应不受限制的言论。该法案1986的版本将“在他人的视觉或听觉范围内可能对他人造成骚扰、惊恐或痛苦的任何文字、符号或其他可见的形式的威胁,辱骂或侮辱”都是为违法。只是“有可能”;不需要证明当事人是有意造成痛苦。即使最终不予起诉,警察也常依据这一条赋予的权力进行逮捕,或者威胁逮捕。而这只是在英国。在其他地方,掌权者可以随意将自己需要的含义赋予“公共秩序”一词。

道德观念,有时也被称为公德或者风化,这个概念更难准确定义。对淫秽、服饰或性的观念因时因地存在极大的差异。就算在同一个国家中也可能不同。比如色情制品,美国最高法院反复强调必须是一般人按照“当前的社区标准”认为该制品有问题才可以。但最高法院还坚持认为这取决于在哪个社区人群中。在旧金山科斯特罗区中很正常的话可能在艾奥瓦州宗教气氛浓重、保守主义盛行的小镇就会引起轩然大波。因此最高法院建议各州自行决定。然而互联网带来的是社区之间、代继之间、国家之间那些传统的围墙被推到了。因此有谁来决定呢?又该以什么为依据?

我们能做什么?

联合国人权委员会一般性意见》其他方面都很好,但对上述问题也勉强给出了一些极为宽泛的意见。其中对国家安全的意见最具体,反对“禁止或限制具有合法公众利益且无损国家安全的公共信息,或者因新闻记者、研究员、环境积极人士、人权捍卫者或其他人传播此类信息而对其提起诉讼”。对于公共秩序,则只说“可允许在一些情况下约束特定公共场合中的发言”。对于道德观念,则毫无评论,只是指出另一篇文献,即《第22号一般性意见》,其中写道:“道德观念来源于许多社会、哲学和宗教传统;因此,为了保护道德对表示宗教或信仰的自由的限制必需基于不光是来自单一传统的原则” 。这在实践中如何理解呢?

一个办法是让这些非常笼统的原则更加严谨具体。“第十九条”组织曾在1995年召集专家制订了《关于国家安全、言论自由和使用信息的约翰内斯堡原则》。开放社会基金会的法律项目部门一直在试图进一步更新并精炼这些原则,特别强调公众的知情权——Sandra Coliver在本站撰文认为这些应该加入到我们的十大原则中去。点击这里阅读该文的最新版。似乎很难就以公共秩序进行限制这个问题做出这样清晰的阐述,更不用说道德观念的问题了。

正是因为难以在这些方面建立起稳固的、普世的和跨文化的标准,挑战的自由这一元原则就更显重要。如果一个人为了扩大一个国家的言论自由界限而故意违法,那么这个人应该很合理地期待搜到相应的罚款或者民事处罚。但是在任何地方、任何条件下都不应该因为一个人挑战了限制言论自由的具体法律或者法规背后的原则,或者质疑了其在具体案例中的应用,而对这个人加以起诉或者迫害。


评论 (12)

读者须知:自动翻译由Google翻译提供,虽然可以反映作者大意,但不一定能提供精准的译意。

  1. The link abowe, in the text “here” (“There’s a useful discussion of what the public interest does mean here”), it doesn’t run.
    Thanks!

  2. Once again we are given the opportunity to read a wonderful, enlightening, thought provoking and educating article; and all the subsequent comments. This subject has been of some interest to me for some time. Please forgive me if my comments seem more than a little incredulous, and perhaps somewhat crazy. I do agree with all that is conveyed within the article. This seems to be an immensely complex subject and I am far form being anything of a writer; with no education, as you have probably gathered by now. We live in changing times, technology is advancing and making it easier to collect information of all types and also to distribute information. All this information technology has multiple uses and can be mixed with other ingredients of generic day to day life to make many byproducts. If we use Facebook we willingly give some personal details out towards strangers and whoever. We also enter a world in which we are well liked and very popular because it is the nature of Facebook to bring us smiling loyal friends and remove any who grumble or disagree with our comments. This does not require any direct action by Facebook staff or anyone else; it’s a natural process. It appears to me there are many aspects of if issue that are completely, or almost unknown to the public; but known to the rare breed of specialists. The poorly educated are helped greatly by modern information technology; but the whole mass of the general public are open to manipulation on a massive scale. If we move form one web site to another and do the same with news outlets we can find on the popular “high hit rate” sites radicalization on a large scale, people with angry opinion but no, or very little knowledge of what their anger is about. I am not very good explaining these things; but I really do believe we must beware. Terrorism and pedophiles are subjects that are genuinely profoundly disturbing; but are we being whipped into hysteria to make us proud to give up our privacy to those with surreptitious agendas. Our TV pumps out lots of propaganda which adds to the mix and sometimes encourages the giving up of more privacy. We also have a problem that all those ‘little guys’ who don’t have any real fire power and capacity to do violence; will be dealt with severely; others , state actors, private contractors and so forth are OK and will get away with anything. Much of the data collecting paraphernalia is owned and used by multiple organisations, business, civil public sector, military, intelligence gathering and so on, one way or another. We sometimes read sensational stories that make “conspiracy theories” of secret Intelligence gathering; when it’s just some day to day mundane operation. The really important issue here is should we be happy for more of our personal information to be stored, and more of our privacy given up. In my limited, but considered opinion definitely not, we cannot trust those in power, if we consider terrorism there are scandals of torture, lies and massive fraud. Look deeper and we find much more of the same going back many years.

  3. First of all, congratulations for the project. It’s quite interesting.

    I agree with most of the comments above. The definition of public interest online is a very shady business, in particular because the perpetual memory of the internet can, in my view, constrain the usual definitions of the concept, mostly because anything can become of public interest at any time. You can go back years and years on end and find anything related to someone who’s suddently under the spotlight and anything that is unrelated, but still damaging comes up again, even if not in the public’s interest.

    There’s a two-fold approach to this, in my view: there’s a need for an education for privacy, in which people are taught how to behave online (and I’m not just referring to social media). We focus a lot on companies privacy policies, but we seldom talk about how the people use the internet, something which, I am sorry to say, the majority seems to know very little about. Then there’s also a need for a regulated approach to privacy, which applies to companies, but also individuals, by which one can enforce not a right to be forgotten, which is technically unfeasible so far, but a right not to be found (see for instance the recent EU Court of Justice referral regarding Google). As Prof. Schoenberg wrote in his book (“Delete”), online abstinence is not a good approach anymore, but neither is online binging, especially involving personal data.

    Finally, I strongly feel that, as difficult as it may be, a limit should be set as to how the internet – and internet-linked technologies – should enter our daily lives. This of course involves a serious reflexion on big data, profiling, data retention and so on and so forth.

  4. Privacy sounds like a nice thing. If I could have a right to privacy without this interfering with free speech, then I’d be tempted. But what are we supposed to do? If I do tell someone an intimate secret, can I really be given a right to force them never to reveal this information? That sounds an awful lot like limiting free speech.

    Attempts to enforce a right to privacy can easily interfere with free speech – and free speech is more important than privacy. It shouldn’t be a question of trying to ‘balance’ a ‘right to privacy’ against ‘the public interest.’ It is not in the public interest to compromise on free speech without an extraordinarily good reason – and preventing people being embarrassed is not an extraordinarily good reason for limiting free speech. Are we really going to argue – without any trace of irony – that, in order to protect free speech, we have to force people to keep quiet about things that might embarrass other people? Very often, this embarrassment results from people being two-faced and deceitful. They want to present one image of themselves to certain people whilst the truth lies elsewhere. Should we compromise free speech in order to protect liars from being discovered?

    I am also concerned to challenge the central argument that privacy is a condition of free speech – as expressed in the top paragraph. Providing we don’t have a police state – which obviously wouldn’t have free speech anyway – the argument about a lack of privacy preventing free speech doesn’t hold water. It is true that, even without a police state, most people will still limit what they say if they think their words will not remain private. That, however, is their choice. They are not being forced to keep quiet. Their right to free speech has not been taken away. They are choosing not to share their views – usually because it doesn’t suit them for certain other people to know the truth about what they think.

    There are legitimate ways in which we can seek to protect our rights to privacy. Mainly, however, these should focus on restricting some of the more intrusive methods that people might use to gain information about us rather than on restricting how they can disseminate information they have obtained legitimately. Limiting free speech in order to protect people’s privacy, however, is another matter.

    We shouldn’t be compromising our free speech principles. When people have concerns about such things as privacy, instead of pandering to any demands they might have that free speech should be limited, we should stand by our principles and argue our case that, however much we might enjoy our privacy, free speech is far, far more important.

    • The problem is not so much that you can’t force someone to reveal your intimate secret, is the fact that it can be revealed potentially to four billion people and that it will stay there forever. You can change jobs, city, country and it will stay there. And this can have horrible consequences. That’s the main issue. The public space changes when it becomes a virtual (online) public space.

      The same goes for the concept of free speech. If you apply self-censorship (which in some cases could just be called “common sense”), then you’re restraining your freedom of speech, because you know that the perpetual and open nature of the internet can have consequences in the future. I’m all for making people responsible for their comments, but I also know that people don’t really understand how the internet works and that often they may make comments for a specific group in a specific situation which can then spilled by others and can become potentially harmful. I’m talking about hate speech as much as political, religious or any other views. I don’t agree with the balance metaphor either, but I do think that these two fundamental rights are equally important.

  5. I couldn’t agree more with the opinion concerning the importance of freedom of speech, but freedom of speech doesn’t mean public interest, at least not anytime. The right of private life, the public interest and freedom of speech are three legal concepts which are interconnected but different, and obviously, should not exclude each other. Moreover any right involves a correlative duty. Freedom of speech is not incompatible with the right to privacy as long as it is used without breaching the other’s rights, as they are ruled by the relevant statutes.

  6. This principle is always going to be a difficult one to juggle. I agree that ‘public interest’ is very vague and could be used to justify either immense amounts of press intrusion or very little depending on where the bar is placed. But as a free speech principle enshrining the right to privacy without some way around it in the statement would seem to be doing the opposite of what much of the project is promoting. A principle of privacy would present a block on freedom of speech rather than an attempt to break down such barriers as most of the other principles do. Indeed I am slightly surprised that the principle was not more radical the other way towards there not being much right to privacy. Principle 8 seems to turn what might otherwise have been quite a radical manifesto for free speech into a much more status quo idea.

  7. The second part of the principle 8 is too vague to be accepted as such, without a precise definition of ‘public interest’. This is the reason why I would maintain only the first part of the principle, namely: ‘we are entitled to our private life’, as one of the fundamental human rights enshrined by the European Convention of Human Rights and the ECHR’s judgments delivered according to this.
    Any infringement of this right should be justified only either on the legal grounds concerning criminal investigations (including those relating to terrorism and more), and/or the public interest relating to public servants’ activities (public activities and private activities which could make these individuals vulnerably as regards their public status).

  8. People shouldn’t be entitled to a private life if it means that they can use their privacy to cause harm to other people. What if someone used their privacy to build a terrorist following?

  9. The public interest is far too fickle to consider encroachment onto privacy tolerable. Allowing it to be cherry-picked allows far too much room for abuse.

  10. I don’t necessarily agree with this statement as we don’t currently have an accurate way of measuring what’s in the public interest. As a result people believe they are interested in the topics which are in the media, but these might not have been the interests they would have formed left to their own devices.

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“言论自由大讨论”是牛津大学圣安东尼学院达伦多夫自由研究计划下属的学术项目。

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