THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
Freedom of Expression and Opinion
Convention on the Rights of Persons with Disabilities
Article 21, Freedom of expression and opinion and access to information
States Parties shall take all appropriate measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice, as defined in article 2 of the present Convention, including by:
(a) Providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost.
(b) Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions.
(c) Urging private entities that provide services to the general public, including through the Internet, to provide information and services in accessible and usable formats for persons with disabilities.
(d) Encouraging the mass media, including providers of information through the Internet, to make their services accessible to persons with disabilities.
(e) Recognizing and promoting the use of sign languages.
Article 2, Definitions (excerpts):
For the purposes of the present Convention:
“Communication” includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology.
“Language” includes spoken and signed languages and other forms of non-spoken languages.
The information contained in this chapter will enable participants to work towards the following objectives:
· Define the right to freedom of expression and opinion.
· Explain the importance of the right to freedom of expression and opinion for persons with disabilities.
· Understand the interrelationship between the right to freedom of expression and opinion and other human rights.
· Identify ways in which the right to freedom of expression and opinion of persons with disabilities has been promoted or denied.
· Understand the provisions related to freedom of expression and opinion in the Convention on the Rights of Persons with Disabilities (CRPD).
GETTING STARTED: THINKING ABOUT FREEDOM OF EXPRESSION AND OPINION
The human right to freedom of expression and opinion addresses a number of specific but interrelated concepts, each of which can be subjected to differing degrees of restriction by States:
1. Freedom of opinion
Everyone has the right to hold any opinion or view, regardless of how popular, unpleasant, or controversial others might find that opinion. This is a right that is absolutely protected and cannot be subjected to any form of restriction by States, as to do so would be to permit State interference into people’s very minds and thoughts. Essentially we all have the right to think as we please and not to be told what or how to think.
2. Freedom of expression
The right to freedom of expression has two distinct parts:
· The right to impart or share information and ideas of all kinds.
· The right to seek and receive information.
The right to freedom of expression includes the right to exchange information and articulate ideas and opinions, as well as to obtain information so that ideas and opinions can be developed. Unlike the right to freedom of opinion, the right to freedom of expression carries with it certain responsibilities and can be subjected to restrictions by the State. The expression of ideas or exchange of information can sometimes be harmful to others, such as when people incite hatred against others or say untrue things that could harm the reputation of another person. For this reason the State is permitted to impose some restrictions on the right to expression in the interests of public safety, order, health, morals, or protection of the fundamental rights and freedoms of others. However, such restrictions must be provided by law and actually necessary to protect those interests. In addition, any restrictions imposed by the State should not be so great as to effectively eliminate the right.
The right to freedom of expression and opinion is critical to the enjoyment of other human rights by persons with disabilities. For example, it would be hard to imagine the forming and effective functioning of disabled people’s organizations (DPOs) without the ability of members to participate in the sharing and exchange of information and ideas. Similarly the ability of persons with disabilities to participate in political and public life, such as through voting and public service, would be severely hampered if candidates could not express their views and voters could not access information about the issues. The formation and exchange of ideas is also essential to the right to education, where research and debate are critical components of many academic environments. In the same way, the development and exchange of ideas is critical to the development of culture and can provide an important means of expression.
Violations and Barriers to Freedom of Expression and Opinion
Despite the importance of the right to freedom of expression and opinion, persons with disabilities face numerous barriers to full enjoyment of this right. For instance, many persons with disabilities lack access to information in accessible formats. This is certainly true for mainstream media, where not all television programmes are broadcast with subtitles, captioning, or inset sign language interpretation for viewers who are deaf, or audio description for viewers who are blind or have visual impairments. Few newspapers are available in Braille or audio format in a timely manner for readers who are blind, and fewer still offer content in plain language suitable for people with intellectual disabilities. Despite the growing use of the Internet as a source of news and a means of research, many websites remain inaccessible to persons with disabilities. Emerging technologies, such as digital broadcasting and broadband, have the potential to enhance the accessibility features available to persons with disabilities. However, this potential will only be realized if decision-makers responsible for how information is distributed are aware of the need to address accessibility and are willing to listen to the views of product users who have disabilities.
As with other human rights, one of the greatest barriers to enjoyment of the right to freedom of expression and opinion can be the attitudes of others. Prevailing social attitudes and stereotypes often create an environment in which the opinions of persons with disabilities are not welcome. Even when they do express themselves, their ideas and opinions may not be accepted as worthy of consideration on an equal basis with those of others. Persons with intellectual and psychosocial disabilities commonly face pressure from others to conform not only in their way of thinking, but also in their methods of expressing themselves, to a manner considered “more acceptable.” Some people with psychosocial disabilities have noted that forced treatment involving psychotropic medications can interfere substantially with a person’s thought processes, making it difficult to think clearly and formulate opinions. In some cases the actual objective of using these therapies is to alter the way people with psychosocial disabilities think and express themselves so that their behaviour and beliefs do not offend or upset other people. This treatment is often defended by the argument that it is in the person’s best interests to avoid thoughts, ideas, and opinions that are “not rational.”
The Interrelationship of Rights
Violations of other human rights can also negatively impact the enjoyment of the right to freedom of expression and opinion by persons with disabilities. For example, lack of access to education can hamper the opportunities for persons with disabilities to acquire knowledge and learn skills that contribute to developing ideas and sharing those ideas with other people. Violations of the right to privacy may discourage persons with disabilities from expressing their ideas in letters or other forms that they feel may be subject to search or confiscation. Such concerns may be heightened for people who do not enjoy the right to live independently and in the community. These people often live in institutional settings where staff or others living there may not be sufficiently respecting their right to privacy.
In summary, the right to freedom of expression and opinion is essential to the ability of persons with disabilities to develop as individuals and to participate in societies on an equal basis with others. However, full enjoyment will remain elusive for persons with disabilities as long as access, attitudinal, and other barriers exist.
United Nations Global Audit of Web Accessibility
The United Nations commissioned Nomensa, a company specializing in technology accessibility, to conduct a survey of websites from around the world in order to obtain an indication of the “accessibility of websites that persons with disabilities might access as part of their daily lives.” The survey examined 100 websites from 20 countries, focusing on five sectors: travel, finance, media, politics, and retail. It found that the vast majority of those websites did not currently meet internationally established accessibility standards and that many would need considerable work to upgrade them. Indeed, only 3 of the 100 websites met the basic accessibility rating. The following excerpts from the report represent some of the survey’s findings, and indicate barriers to access experienced by a variety of persons with disabilities:
· 93% did not provide adequate text descriptions for graphical content, causing problems for persons who are visually impaired.
· 78% used foreground and background colour combinations with poor contrast, making it difficult for people with mild visual conditions such as colour blindness to read information.
· 97% used link text that did not clearly indicate the destination of the link, causing confusion for people with learning difficulties.
Source: Nomensa, United Nations Global Audit of Web Accessibility (2006): http://www.un.org/esa/socdev/enable/documents/execsumnomensa.doc
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT FREEDOM OF EXPRESSION AND OPINION?
Article 19 of the Universal Declaration of Human Rights (UDHR) provides a concise description of the right to freedom of expression and opinion that captures the essential elements, including the right to hold opinions “without interference,” as well as the right to receive and impart information and ideas “through any media and regardless of frontiers.” Thus, there are no geographic restrictions on the right, and the right can be enjoyed regardless of the methods or media used.
The International Covenant on Civil and Political Rights (ICCPR) further elaborates this right, addressing in more detail when and how States may place restrictions on its enjoyment. Article 19 of the ICCPR does not permit restrictions on the freedom of people to hold opinions. However, it does permit restrictions on the right to freedom of expression in order to respect the “rights or reputations of others,” national security, public order, public health, or morals. As noted by the Human Rights Committee in General Comment No. 10 on freedom of expression, any such restrictions must be provided by law and necessary to protect the interests permitted by the article. They “may not put in jeopardy the right itself” or be imposed arbitrarily.
Other international human rights conventions do not provide the same level of detail about the freedom of expression and opinion as that given in the ICCPR. For example, Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) merely notes that States must prohibit and eliminate racial discrimination and guarantee equality in enjoyment of the “right to freedom of opinion and expression.” Article 13 of the Convention on the Rights of the Child (CRC) largely repeats the ICCPR provisions, though Article 12 states that children should be able to express their views on matters concerning them and that those views should increasingly be taken into account as the child grows in maturity and competence.
CRPD Article 21, Freedom of expression and opinion, does not address the parameters of the right to freedom of expression and opinion in the same detail as the ICCPR. Instead, it examines specific issues impacting the ability of persons with disabilities to enjoy the right on an equal basis with others. The article places great emphasis on the need for information to be available in accessible formats and technologies, whether distributed by the mass media or by public or private actors. It also calls for States to accept sign language, Braille, and other means and modes of communication that persons with disabilities choose to use whenever they have “official interactions.” In recognition of the importance of sign language, Article 21 also calls for States to recognize and promote the use of sign language. It should be noted that the terms language and communication used in Article 21 are defined further in Article 2.
CRPD Committee on the Right to Freedom of Expression and Opinion
The CRPD Committee, in its first concluding observations on education in relation to the Tunisia report, recommended that the State Party:
Take measures to ensure that persons with disabilities can exercise the right to freedom of expression and opinion on an equal basis with others and, in this regard, provide information intended for the general public in accessible formats and – especially with respect to the deaf, hard-of-hearing, and deafblind – recognize and promote the use of sign language.
Source: Committee on the Rights of Persons with Disabilities, “Consideration of Reports submitted by States under Article 35, Concluding Observations – Tunisia,” (13 May 2011): http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Session5.aspx
The Duty to Respect, Protect, and Fulfil Obligations Relating to Freedom of Expression and Opinion
Taken as a whole, States’ obligations with regard to the right to freedom of expression and opinion include:
1. Obligation to respect: States must refrain from engaging in any act, custom, or practice that creates barriers to the enjoyment of freedom of expression and opinion for persons with disabilities.
Example: The State does not enact laws or policies that prohibit persons who are deaf from communicating in sign language.
Example: The State provides legal protections to ensure that persons with disabilities enjoy equal access to communications in a non-discrimination law.
2. Obligation to protect: The State ensures that non-State or “private” actors, such as businesses that distribute information to the general public, do not create barriers to the enjoyment of the right of persons with disabilities to freedom of expression and opinion.
Example: The State takes action to ensure that banks provide equal access to checking accounts for persons who are blind.
Example: The State enacts and enforces a law that requires private businesses with websites to develop and maintain websites that are accessible to persons with all types of disabilities.
Example: The State takes measures to monitor the implementation of accessibility guidelines.
3. Obligation to fulfil: States must take proactive action to ensure enjoyment of the right to freedom of expression and opinion by persons with disabilities.
Example: The State takes steps to provide signs in Braille in public buildings, such as courthouses.
Example: The State provides information on access to entitlement programmes in plain language/easy-to-read formats.
Example: The State takes action to promote access to new information technologies and systems for persons with disabilities.
In sum, international human rights law strongly supports the right to freedom of expression and opinion for persons with disabilities, so that they may participate fully in all aspects of life on an equal basis with others.
Making Information Available in Plain Language
In 2002, Jean Ross and Janet Pringle of the Vocational and Rehabilitation Research Institute (VRRI) gave a speech to the Plain Language Association International (PLAIN) entitled: “Hey, I can read that! Perspectives on plain language and people with developmental disabilities.” Jean Ross, who self-identifies as someone with a developmental disability, spoke of some of the reasons why it is important for information to be available in plain language:
“It’s not fair when things we need to know are not written so we can read them. We feel left out. We have to wait for our support workers, or our family to tell us things. Sometimes they don’t have time or they forget. We should be able to read them for ourselves.”
Ross and other people with developmental disabilities work with people like Janet Pringle in order to “translate” information into plain language. This helps to make the content of the information accessible to as many people as possible. (The information might still need to be available in alternative formats, such as Braille, in order to make it fully accessible to all people with other disabilities.) After the information has initially been translated, the group works together to figure out what the information is trying to say and whether it does so in a way that can be understood by everyone.
Source: Jean Ross and Janet Pringle, “Hey, I can read that! Perspectives on plain language and people with development disabilities,” Plain Language Association International (PLAIN) Fourth Biennial Conference Proceedings (27 Sept. 2002): http://www.plainlanguagenetwork.org/conferences/2002/perspect/perspect.pdf
USEFUL RESOURCES ON FREEDOM OF EXPRESSION AND OPINION
· Human Rights Committee, General Comment No. 10, Freedom of Expression (Article 19 of the International Covenant on Civil and Political Rights) (1983): http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/2bb2f14bf558182ac12563ed0048df17?Opendocument
o Discusses the equal importance of the freedom to impart information and ideas and the freedom to seek out information and ideas.
· International Norms and Standards Relating to Disability, IV. Towards a Rights Based Perspective on disability, 1. Civil and Political Rights, 1.5 Right to Freedom of Expression, UN Enable, http://www.un.org/esa/socdev/enable/comp401.htm#1.5
· U.S. Department of Health and Human Services, “Testing Documents for Section 508 Compliance”: http://www.hhs.gov/web/508/testdocuments.html
o Reviews Internet accessibility for persons with disabilities.
· United Nations Enable, “Manila Declaration on Accessible Information and Communication Technologies (ICT),” (2003): http://www.un.org/esa/socdev/enable/maniladecl.htm
o Reviews how accessible the internet is for persons with disabilities.
· Nomensa, United Nations Global Audit of Web Accessibility (2006): http://www.un.org/esa/socdev/enable/documents/execsumnomensa.doc
o Reviews how accessible the internet is for persons with disabilities.
· W3C Web Accessibility Initiative, “Policies Relating to Web Accessibility”: http://www.w3.org/WAI/Policy
o Provides information about national laws and policies that relate to web accessibility for persons with disabilities.