Article 19 of the Universal Declaration of Human Rights recognizes a right to freedom of expression. Article 10 of the European Declaration of Human Rights does likewise. Regulation of the use of radio devices can restrict freedom of expression. What sort of radio regulation is justified under human rights law?
Under the prompting of Open Spectrum, human rights organizations are beginning to consider this question. With respect to licensing requirements (one type of restriction on radio use), a human rights organization called Article 19 stated in a brief note (MS Word doc):
A licence requirement for wireless communications devices clearly constitutes a restriction and therefore it must be 1) provided by law; 2) serve a legitimate aim; and 3) be necessary for the attainment of that aim.
A necessary restriction for attaining a legitimate aim under law is no more restrictive than a feasible alternative, narrowly tailored, and proportionate to the aim.
Article 19’s brief but pioneering analysis seems to have at least one weakness. The analysis suggested that “preventing chaos in the frequency spectrum is a legitimate goal” under human rights law. Under Article 19(3) of the International Covenant on Civil and Political Rights, one legitimate aim for restricting freedom of expression is to protect public order. One might consider protecting public order to encompass preventing chaos in the frequency spectrum. However, focus on order among frequencies, like focus on relations between bodies of water, can lead to law with little connection to the facts of communication among persons. Particularly with respect to human rights, public order is probably better understood in terms of order among persons (the public). Compared to the extent of chaos in the frequency spectrum, actual personal freedom to communicate is a much more meaningful public issue.
Freedom of expression is directly related to the real circumstances of contemporary life. In an insightful response to Ofcom’s consultation entitled “Spectrum Framework Review,” Open Spectrum UK noted:
The justifications given in the current consultation for utilising market forces refer to maximising economic benefits and spectrum efficiency. However, one must not forget that the regulation of radio was instituted internationally not to control interference but to reign in the business practices of the Marconi Wireless Telegraph Company.
Knowledge of technology and examination of leading practices world-wide provides insight into what sort of communications capabilities persons could have at a given time. Radio regulation that deprives persons of these capabilities deserves to be assailed as a violation of human rights.