Everyone has the right to freedom of opinion and expression, which includes the right to seek, receive, and impart information and ideas of all kinds through any media of choice. It also includes the right to hold opinions, express ideas, and seek, receive, and impart information about drugs and drug policy.
In accordance with this right, States should:
i. Take all necessary legislative, administrative, and other measures to ensure full enjoyment of the rights to freedom of opinion, expression, and information about matters related to drug laws, policies, and practices, including information and opinions regarding health services for people who use drugs (such as harm reduction interventions); the composition of controlled drugs; the value, meaning, and benefits of traditional, cultural, and religious uses of substances; the human rights of people who use drugs or are otherwise involved in drug-related activities; and reforms to such laws, policies, and practices.
ii. Provide accurate and objective information about drug laws, policies, and regulations; drug-related harms; and drug-related health goods, services, and facilities.
iii. Refrain from censoring or restricting access, including through the application of criminal or other sanctions, to scientific and health-related information about drugs, drug use, drug-related harms, and goods, services, and facilities aimed at preventing or reducing such harms, and refrain from otherwise withholding or intentionally misrepresenting such information.
The right to freedom of opinion and expression is guaranteed by numerous human rights instruments.576 The International Covenant on Civil and Political Rights requires protection of the right to hold opinions without interference and permits no exception or restriction.577
The Special Rapporteur on freedom of opinion and expression, the Human Rights Council, and the General Assembly have affirmed that the rights to freedom of opinion and expression and other rights apply equally online.578 The Special Rapporteur on freedom of opinion and expression notes that the right to freedom of expression and opinion is an ‘enabler’ that facilitates the exercise of other rights, including the rights to health, to education, to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to association and assembly.579 The right to information is part of the right to freedom of expression and is also necessary to realise the right to health and other rights. State restriction, control, manipulation, or censorship of information ‘without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim’ may create a ‘chilling effect’ on the right to freedom of opinion and expression, in violation of international human rights law.580 The Special Rapporteur on freedom of opinion and expression notes that ‘the arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right’ that may lead to ‘other human rights violations, such as arbitrary detention and torture and other forms of cruel, inhuman or degrading treatment or punishment’.581
The Special Rapporteur on cultural rights has noted that ‘States and other stakeholders often refer to the necessity of regulating the dissemination of artistic expressions deemed to, for example … amount to drug propaganda’.The Special Rapporteur has advised that these concerns need to be addressed in compliance with permissible limits on freedom of expression and has encouraged States, when applying these standards, to take into consideration the specific nature of artistic expressions and creations. The Special Rapporteur has noted that ‘through their expressions and creations, artists often question our lives, perceptions of ourselves and others, world visions, power relations, human nature and taboos, eliciting emotional as well as intellectual responses’, that ‘the resort to fiction and the imaginary must be understood and respected as a crucial element of the freedom indispensable for creative activities and artistic expressions’, and that artists ‘should be able to explore the darker side of humanity, and to represent crimes or what some may consider as “immorality”, without being accused of promoting these’.582
States have a positive obligation to ensure that people who use drugs and their peers can obtain and impart complete and accurate information necessary to protect their health, lives, and liberty, including information about drug-related harm, including overdose and blood-borne diseases such as HIV; harm reduction and drug dependence treatment services; other drug-related health goods, facilities, and services; and drug law and policy. States should ensure that such information is accessible to everyone without discrimination and refrain from interfering in its dissemination.583 Laws that censor or restrict access to such information and penalise its dissemination – such as laws proscribing ‘drug propaganda’ or the ‘incitement’, ‘encouragement’, or ‘aiding and abetting’ of drug use – violate protections of the right to freedom of expression and information.
The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms protects the right of everyone, individually and in association with others, ‘to develop and discuss new human rights ideas and principles and to advocate their acceptance’.584 This elaborates on the rights to freedom of opinion and expression and to freedom of peaceful assembly and association.585
Relationship to the UN drug control conventions
The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requires that States, subject to constitutional limitations, criminalise ‘[p]ublicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly’.586 The Commentary on the 1988 Convention recognises that this provision is ‘widely drawn’ and that the wording of encouragement ‘by any means’ is very broad. Originally born of a concern ‘about magazines and films glorifying drug use’,587 today it could also cover websites. Implementing this provision requires close attention to concomitant guarantees of freedom of expression.588
The UN General Assembly Special Session 2016 Outcome Document includes a section on the use of the internet for drug-related activities that includes recommendations on steps to take ‘to prevent and counter drug-related criminal activities using the Internet, consistent with relevant and applicable law’.
Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 19; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 19; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 10; American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 13; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 9; Arab Charter on Human Rights (2004), art. 32; see also Human Rights Committee, General Comment No. 34: Article 19; Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011).
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 19(1); Human Rights Committee, General Comment No. 34: Article 19; Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011), para. 9.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, David Kaye, UN Doc. A/HRC/35/22 (2017), para. 5; UN Human Rights Council, Resolution 32/13: The Promotion, Protection and Enjoyment of Human Rights on the Internet, UN Doc. A/HRC/RES/32/13 (2016), para. 1; UN General Assembly, Resolution 73/179: The Right to Privacy in the Digital Age, UN Doc. A/RES/73/179 (2019), para. 3.
See Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, UN Doc. A/HRC/17/27 (2011), para. 22.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, UN Doc. A/HRC/17/27 (2011), para. 22.
Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Frank La Rue, UN Doc. A/HRC/17/27 (2011), para. 28.
Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed, The Right to Freedom of Artistic Expression and Creativity, UN Doc. A/HRC/23/34 (2013), paras. 33–35, 37.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), arts. 2, 19; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), paras. 12(b), 18.
See also UN General Assembly, Resolution 53/144: Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, UN Doc. A/RES/53/144 (1999), annex, art. 7.
Office of the UN High Commissioner for Human Rights, Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (2011), p. 83.
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1582 UNTS 95 (1988), art. 3(1)(c)(iii).
Commentary on the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 (1998), p. 74, paras. 3.72–3.73.
UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 5(p).