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BRIEFING NOTE SERIES Freedom of Expression

Centre for Law and International Media Support (IMS)

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FREEDOM OF EXPRESSION BRIEFING NOTE SERIES July 2014 ! This publication was produced with the generous support of the of Denmark, and Norway. ! Centre for Law and Democracy (CLD) International Media Support (IMS) 39 Chartwell Lane Nørregade 18 Halifax, N.S. 1165 Copenhagen K B3M 3S7 Denmark Canada

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© CLD, Halifax and IMS, Copenhagen ISBN 978-87-92209-62-7

This work is licenced under the Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International licence. To view a copy of this licence, visit: http://creativecommons.org/licenses/by-nc-sa/4.0/ You are free to copy, distribute and display this work and to make derivative works, provided you give credit to Centre for Law and Democracy and International Media Support; do not use this work for commercial purposes; and distribute any works derived from this publication under a licence identical to this one.

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Abbreviations

ACHR American Convention on Human COE ECHR European Court of ICCPR International Covenant on Civil and Political Rights ICT and communications technology IPC Indonesia Press Council OAS Organization of American States OSCE Organization for Security and Co-operation in Europe PKK Kurdistan Workers’ Party PSB Public service broadcaster RTI Right to information UDHR Universal Declaration of Human Rights UN United Nations UNHRC United Nations Human Rights Committee UNESCO United Nations Educational, Scientific and Cultural Organization

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Contents

Introduction 1 Briefing note 1: Freedom of Expression as a Human Right 2 Briefing note 2: Restrictions on Freedom of Expression 5 Briefing note 3: The Right to Information 9 Briefing note 4: Independent Regulation of the Media 13 Briefing note 5: Regulation of Journalists 16 Briefing note 6: Print Media 20 Briefing note 7: Broadcast Regulation 23 Briefing note 8: Media Diversity 27 Briefing note 9: Public Service Broadcasting 30 Briefing note 10: Criminal Content Restrictions 33 Briefing note 11: Civil Content Restrictions 39 Briefing note 12: 43 International Organisations Active on Freedom of Expression 47 Glossary 48

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Introduction

This series of Briefing Notes is designed to restrictions on freedom of expression, as give readers an understanding of the key well as on the right to information (or international legal standards that apply in ) and digital rights. the context of freedom of expression. They are aimed at an audience which does not In addition to providing substantive necessarily have a deep understanding of guidance in the relevant thematic area, the freedom of expression issues, but they also Briefing Notes contain a number of pithy aim to be of interest and relevance to more quotes from leading sources. The idea is to sophisticated freedom of expression provide readers with quick access to observers and practitioners. Thus, while ‘quotable quotes’ for possible reuse in their the Briefing Notes are designed to be work. Each Note also contains a section at broadly accessible, they also provide the end on further resources, for readers readers with fairly in-depth knowledge who want to probe the subject more about freedom of expression issues. deeply.

Each individual Briefing Note addresses a The Briefing Notes are available in two different thematic freedom of expression different formats. They are available as a issue. The first, perhaps predictably, is collection in physical print format as well as titled Freedom of Expression as a Human electronically at www.law-democracy.org Right, while the second looks at the and www.mediasupport.org. But they have permissible scope of restrictions on also been designed as stand-alone products freedom of expression under international and are thus available as individual Briefing law. Several of the Briefing Notes focus on Notes. This is to provide easy accessibility to different areas of media regulation, readers who want to focus on just one or two including print, broadcast and public thematic areas, without feeling they need to service media, journalists, media diversity read through masses of extraneous text. and independent regulation. This reflects the central role media regulation plays The Centre for Law and Democracy (CLD) both in terms of guaranteeing freedom of and International Media Support (IMS) expression and in the legal frameworks hope you find these Briefing Notes found in relating to freedom accessible and useful and we also welcome of expression. There are also Briefing feedback at [email protected] and Notes on both criminal and civil [email protected]. Happy reading.

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 1! ! BRIEFING NOTE 1: FREEDOM OF EXPRESSION AS A HUMAN RIGHT

BRIEFING NOTE 1 Freedom of Expression as a Human Right

Freedom of expression is a core human agenda will require that all right which is guaranteed under populations enjoy the fundamental international law and by virtually every rights of freedom of opinion and constitutional bill of rights in the world. It expression. These rights are is key to human development, dignity, essential to democracy, personal fulfilment and the search for , and truth, and a fundamental pre-requisite for the rule of law. They are vital for democracy and good governance. It human dignity, social progress and facilitates free debate about and between inclusive development. competing political parties, enables citizens to raise concerns with authorities and The right to freedom of expression is ensures that new policies and legislation recognised in all of the main international may be the subject of careful scrutiny. The and regional human rights treaties. This quality of is enhanced by free includes, most notably, the Universal speech because it helps to ensure that Declaration of Human Rights (UDHR), authorities are competent and honest and which was adopted unanimously by the allows individuals to voice concerns about United Nations General Assembly in 1948. and debate government action. Put While the UDHR is not formally legally differently, democratic values are under binding on States, its guarantee of freedom threat when information and ideas are not of expression is widely regarded as having permitted to flow freely. acquired legal force as customary international law. Article 19 of the UDHR The importance of freedom of expression states: has been emphasised by a vast array of different actors. A good example of this is Everyone has the right to freedom the joint statement by United Nations of opinion and expression; this Secretary-General Ban Ki-moon and right includes freedom to hold UNESCO Director-General Irina Bokova opinions without interference and on , 3 May 2014: to seek, receive and impart information and ideas through any This year, the international media and regardless of frontiers. community has a once-in-a- generation opportunity to prepare Similar is included in Article 19 a long-term agenda for sustainable of the International Covenant on Civil and development to succeed the Political Rights (ICCPR), a formally legally Millennium Development Goals binding treaty ratified by 168 States as of when they end in 2015. April 2014: Successfully implementing that

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(1) Everyone shall have the right to [F]reedom of expression ... is applicable freedom of opinion. not only to “information” or “ideas” (2) Everyone shall have the right to that are favourably received ... but also freedom of expression; this right shall to those which offend, shock or disturb include freedom to seek, receive and the State or any other sector of the impart information and ideas of all population. Such are the demands of kinds, regardless of frontiers, either pluralism, tolerance and orally, in writing or in print, in the broadmindedness without which there form of art or through any other is no “democratic society”. media of his choice. Third, the right applies to expressions Freedom of expression is also protected in regardless of the media through which they regional human rights treaties, including are made, including broadcasting and the African Charter on Human and newspapers, the , public debates, People’s Rights, the American Convention academic research and verbal expressions. on Human Rights and the European Convention on Human Rights. Fourth, the right to freedom of expression includes not only the right to ‘impart’ Although technically different from information and ideas (i.e. the right to freedom of expression, Article 19 also speak) but also the right to ‘seek’ and protects the right to hold opinions. ‘receive’ information from others. In other Importantly, while freedom of expression words, freedom of expression enables may be restricted, the right to hold every citizen not only to contribute to the opinions is absolute; the State may never public sphere, but also to have access to a legitimately limit this right. wide range of information and viewpoints. The right to freedom of expression is broad This is a very important aspect of the right, and multifaceted in scope. First, as a which serves as the underpinning of human right, and as is clear from Article important freedom of expression concepts 19, freedom of expression belongs to such as media diversity and the right to everyone. No distinctions are permitted, access information held by public among other things, on the basis of a authorities. person’s race, colour, , sex, language, social origin or . Fifth, another important aspect of the right to freedom of expression is that it imposes both Second, it includes the right to impart negative and positive obligations on the State. In information and ideas “of all kinds”. The its negative aspect, the right places an obligation right to express oneself encompasses not on States not to interfere with the exercise of the only speech which is generally accepted or right to seek, receive and impart information is respectful in tone but also controversial and ideas, except as permitted under or offensive speech. Indeed, one of the international law. The positive obligation is most important aspects of the right to essentially to create an environment which freedom of expression is the protection of supports a free flow of information and ideas in unpopular speech. This was made clear by society, and includes elements such as the the European Court of Human Rights obligation to put in place a legal framework for (ECHR) in the case of Handyside v. United accessing public information and to create an Kingdom: environment in which a free and independent media can flourish.

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support for open public discourse but, at Sixth, the right to freedom of expression the same time, nearly every State has laws applies regardless of frontiers. This means and practices which fail to conform to that it protects the right to access information international human rights standards. This from abroad, whether in the form of ranges from prior regimes to broadcasting, newspapers, the Internet or harsh criminal penalties for disseminating speaking to someone in another country. prohibited speech to regulatory regimes which give the government undue control Unlike the right to hold opinions, the right over the media, public or private, to to freedom of expression is not absolute. It overbroad content restrictions to failures is universally recognised that certain key to implement access to information laws public and private interests may justify the properly. All States should review their placing of restrictions on this right. legal frameworks and implementation However, international law sets out a strict practices to make sure that they conform three-part test which must be met in order to international and constitutional for a restriction to be valid (see Briefing standards. This is a particular priority for Note 2). transitional democracies, where a barrage of illegitimate legal rules often remain in Most States recognise the importance of place and can act as a serious impediment freedom of expression and proclaim their to the process of democratisation.

FURTHER READING ! • Case Law databases: o African Commission on Human and Peoples’ Rights: http://www.achpr.org/communications/ o European Court of Human Rights: http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"documentcollectionid2 ":["CASELAW"]} o Inter-American Court of Human Rights: http://www.corteidh.or.cr o UN Human Rights Committee: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=e n&TreatyID=8&DocTypeID=17

• International Covenant on Civil and Political Rights, UN General Assembly Resolution 2200A(XXI) of 16 December 1966, in force 23 March 1976: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

• UN Human Rights Committee, General Comment No. 34, 12 September 2011, CCPR/C/GC/34: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno= CCPR%2fC%2fGC%2f34&Lang=en

• Universal Declaration of Human Rights, UN General Assembly Resolution 217A(III) of 10 December 1948: http://www.un.org/en/documents/udhr/

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BRIEFING NOTE 2 Restrictions on Freedom of Expression

Although freedom of expression is a necessity and proportionality. fundamental human right, it is recognised [references omitted] under international law that it is not an absolute right and that it may, in Article 19(3) of the ICCPR establishes a appropriate cases, be restricted. The test three-part test for the validity of for whether or not a restriction on freedom restrictions on freedom of expression. of expression is justified is found in Article First, a restriction must be in accordance 19(3) of the International Covenant on with a law. This includes primary Civil and Political Rights (ICCPR): legislation, as well as regulations and other legally binding documents adopted The exercise of the rights provided pursuant to primary legislation. This for in paragraph 2 of this article would include, for example, a binding code carries with it special duties and of conduct for the media adopted by a responsibilities. It may therefore be broadcast regulator pursuant to subject to certain restrictions, but broadcasting legislation. Under this part of these shall only be such as are the test, the power to authorise restrictions provided by law and are necessary: on freedom of expression is essentially (a) For respect of the rights or vested in the legislative branch of reputations of others; government. (b) For the protection of national security or of public order It is not enough simply to have a law; the (ordre public), or of public law must also meet certain standards of health or morals. clarity and accessibility. If restrictions are unduly vague, or otherwise grant This test is strict, with narrowly drawn excessively discretionary powers of conditions. In its September 2011 General application to the authorities, they fail to Comment No. 34 on Article 19 of the meet the main purpose of this part of the ICCPR, the UN Human Rights Committee test, namely to limit the power to restrict (UNHRC) stated: freedom of expression to the legislature. Unduly vague rules may also be Paragraph 3 lays down specific interpreted in a manner which gives them conditions and it is only subject to a wide range of different meanings. It these conditions that restrictions would be inconsistent with democracy to may be imposed: the restrictions give officials the power to make up the must be “provided by law”; they rules as they go and this would also not be may only be imposed for one of the fair to individuals, who should be given grounds set out in subparagraphs reasonable notice of exactly what is (a) and (b) of paragraph 3; and they prohibited. must conform to the strict tests of

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Not only do vague laws bypass democratic legislative control, they can also result in a Furthermore, the restriction must be ‘chilling effect’, whereby individuals steer primarily directed at one of the legitimate far clear of controversial topics because aims and serve it in both purpose and there is uncertainty about what is effect. For example, a restriction that has a permitted and what is not. The chilling purpose directed at one of the legitimate effect can be exacerbated where penalties aims listed but has a merely incidental for breach of the law are unduly harsh. As effect on that aim cannot be justified. the UNHRC stated in General Comment No. 34: Third, the restriction must be necessary for the protection or promotion of the For the purposes of paragraph 3, a legitimate aim. The necessity element of norm, to be characterized as a the test presents a high standard to be “law”, must be formulated with overcome by the State seeking to justify the sufficient precision to enable an interference, apparent from the following individual to regulate his or her quotation, cited repeatedly by the conduct accordingly and it must be European Court of Human Rights made accessible to the public. A (ECHR): law may not confer unfettered discretion for the restriction of Freedom of expression, as freedom of expression on those enshrined in Article 10, is subject charged with its execution. Laws to a number of exceptions which, must provide sufficient guidance to however, must be narrowly those charged with their execution interpreted and the necessity for to enable them to ascertain what any restrictions must be sorts of expression are properly convincingly established. restricted and what sorts are not. To determine if a restriction is necessary, Second, the restriction must serve a courts have identified four aspects of this legitimate aim. Article 19(3) of the ICCPR part of the test. First, there must be a sets out a list of legitimate aims: respect for pressing or substantial need for the the rights and reputations of others, restriction; minor threats to legitimate protection of national security, public aims do not pass a threshold test for order, public health or morals. The restricting freedom of expression. Second, UNHRC has made clear that this list is the approach taken must be the least exclusive, so that restrictions which do not intrusive manner of protecting the serve one of the listed aims are not valid: legitimate aim. If there is an alternative measure which would accomplish the same Restrictions are not allowed on grounds goal in a way which is less intrusive, the not specified in paragraph 3, even if such measure chosen is clearly not necessary. grounds would justify restrictions to other For example, licensing newspapers would rights protected in the Covenant. be an effective way to prevent undue Restrictions must be applied only for those concentration of ownership, but this purposes for which they were prescribed objective can be achieved in ways that are and must be directly related to the specific far less harmful to freedom of expression need on which they are predicated and so licensing cannot be justified on this (UNHRC, General Comment No. 34). basis.

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Third, the restriction must impair the right means of its dissemination. For as little as possible in the sense that it is not instance, the value placed by the ‘overbroad’. For example, while it is Covenant upon uninhibited legitimate to prohibit defamatory expression is particularly high in statements, these rules should be limited to the circumstances of public debate speech which illegitimately undermines in a democratic society concerning reputations. Banning all speech which was figures in the public and political critical would be overbroad since much domain. critical speech is true or otherwise reasonable. When a State party invokes a legitimate ground for restriction of Fourth, a restriction must be freedom of expression, it must proportionate. This part of the test demonstrate in specific and involves weighing the likely effect on individualized fashion the precise freedom of expression against the benefits nature of the threat, and the of the restriction in terms of the legitimate necessity and proportionality of the aim which is sought to be protected. specific action taken, in particular Where the harm to freedom of expression by establishing a direct and outweighs the benefits, a restriction cannot immediate connection between the be justified, keeping in mind that the right expression and the threat. to freedom of expression is a fundamental [references omitted] human right. It is important to note that, in applying this In General Comment No. 34, the UNHRC test, courts and others should take into summarised these conditions as follows: account all of the circumstances at the time the restriction is applied. For example, in Restrictions must not be the case of Zana v. Turkey, the ECHR overbroad. The Committee noted, in evaluating a statement made in observed in general comment No. support of the PKK, a militant separatist 27 that “restrictive measures must group: conform to the principle of proportionality; they must be The statement cannot, however, be looked appropriate to achieve their at in isolation. It had a special significance protective function; they must be in the circumstances of the case, as the the least intrusive instrument applicant must have realised… the amongst those which might interview coincided with murderous achieve their protective function; attacks carried out by the PKK on they must be proportionate to the in south-east Turkey, where there was interest to be protected…The extreme tension at the material time. principle of proportionality has to be respected not only in the law An identical statement carried out in that frames the restrictions but also peacetime may not have met the threshold by the administrative and judicial of necessity, but the specific conditions at authorities in applying the law”. that time, and in that area justified the The principle of proportionality imposition of the restriction in that case. must also take account of the form of expression at issue as well as the

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FURTHER READING ! • Toby Mendel, Restricting Freedom of Expression: Standards and Principles, March 2010: http://www.law-democracy.org/wp- content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf

• UN Human Rights Committee, General Comment No. 34, 12 September 2011, CCPR/C/GC/34: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symboln o=CCPR%2fC%2fGC%2f34&Lang=en

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BRIEFING NOTE 3 The Right to Information

In 1913, Louis Brandeis, a famous United commercial value to RTI, since it increases States jurist, noted: “Sunlight is said to be the competitive nature of tenders and the best of disinfectants.” Although it has businesses often find creative ways of taken a bit of time for that sentiment to monetising public information, either to translate into legislative reforms to give increase the efficiency of their business individuals a right to access information models or to develop innovative new held by public authorities or the right to products. information (RTI), the last 25 years have witnessed a virtual revolution in that The right to information is now firmly respect. In 1989, there were just thirteen recognised as a human right under national RTI laws globally, today there are international law. Article 19 of the some one hundred. Over 5.5 billion people, International Covenant on Civil and 78% of the world’s population, live in a Political Rights (ICCPR) protects not only State which has provided legal recognition the right to communicate, but also the to the right to information. right to seek and receive information and ideas, which serves as the jurisprudential There are several reasons why the right to foundation for the human right to information is of fundamental importance information under international law. in a democracy. The underlying principle is that officials hold information not for The earliest formal recognition of the right themselves but, rather, on behalf of the to information as a general human right public. There are also strong practical was in a 2006 case decided by the Inter- reasons to give legal effect to RTI. In order American Court of Human Rights, Claude to participate effectively in decision- Reyes v. Chile, in which the Court stated: making, citizens need to be able to access the information that governments have In respect of the facts of the present used to come up with proposed decisions. case, the Court considers that The right to information is also an article 13 of the Convention, in important tool in combating corruption guaranteeing expressly the rights to and facilitating oversight of public bodies. “seek” and “receive” “information”, Even where specific information protects the right of every person disclosures do not directly reveal instances to request access to the information of mismanagement, fostering a culture of under the control of the State, with and accountability encourages the exceptions recognised under responsible use of public resources. The the regime of restrictions in the right to information also serves to build Convention. Consequently, the public trust in State institutions. Access to said article encompasses the right information can serve social goals, of individuals to receive the said including through giving individuals information and the positive greater control over their personal obligation of the State to provide it, information. There is also an important in such form that the person can

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have access in order to know the governments may legitimately withhold information or receive a motivated certain information. It would not, for answer when for a reason example, be reasonable for citizens to recognised by the Convention, the obtain access to a list of the names of State may limit the access to it in undercover police informants or private the particular case. The information belonging to third parties. information should be provided However, exceptions to the right should be without the need to prove direct crafted and interpreted as narrowly as interest or personal involvement in possible. order to obtain it, except in cases in which a legitimate restriction is A three-part test applies to any exceptions applied. to the right to information. First, the exception must relate to a legitimate aim Both the European Court of Human Rights which is set out clearly in the right to and the UN Human Rights Committee information law. Although there is no have subsequently recognised the right to universally recognised list of legitimate information, with the latter stating in its exceptions, these are generally understood 2011 General Comment on Article 19 of as being limited to national security; the ICCPR: international relations; public health and safety; the prevention, investigation and Article 19, paragraph 2 embraces a prosecution of legal wrongs; ; right of access to information held legitimate commercial and other economic by public bodies. Such information interests; management of the economy; fair includes records held by a public administration of justice; legal advice body, regardless of the form in privilege; conservation of the environment; which the information is stored, its and legitimate policy making and other source and the date of production. operations of public authorities.

The core principle underpinning the right Second, any decision to withhold to information is the principle of information should be based on a harm maximum disclosure with limited test. It is not legitimate to withhold exceptions. Maximum disclosure information simply because it relates to a essentially means that States should protected interest. Rather, there should be endeavour to make as much information an onus on the public body to demonstrate as possible publicly available, and that that disclosure of the information will provisions granting access should be cause specific harm to one of the listed interpreted as broadly as possible. There interests. Moreover, if it is reasonably should be a general presumption that all possible to sever or redact the sensitive types of information held by all public information, the remainder of the authorities should be accessible, and that document should still be released. Finally, the right should apply broadly, so that there should be a public interest override, non-citizens and legal entities enjoy a right whereby the information is withheld only of access. if the harm to the listed interest outweighs the overall public interest in disclosure. For However, the right to information, like the example, if the information exposes right to freedom of expression from which corruption or human rights abuses, there is it is derived, is not absolute and

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generally a very high public interest in authorities which repeatedly fail to live up favour of disclosure. to their obligations under the law.

In addition to these basic principles, a An effective RTI law will also include strong RTI system will include a clear administrative rules aimed at facilitating procedural framework designed to effective implementation. These should facilitate access in an efficient and include obligations to appoint specialised affordable manner. This should include officials to receive and process requests, to clear and user friendly procedures for provide training to their staff, to maintain making requests, along with quick their records in good condition, and to timelines for responding to them (ideally report annually on what they have done to between two and three weeks). It should be implement the law. free to file requests, and public bodies should only be permitted to charge fees Proactive publication is also a critical based on the reasonable cost of aspect of the right to information. In the reproducing and delivering the digital age, there is an increasing emphasis information. If an information request is on , and on providing as refused, the public body should be much information as possible on a required to contact the requester and proactive basis, mainly via the Internet. In provide them with an explanation and addition to facilitating greater public access information about their options for to information, proactive publication is an appealing the ruling. efficient use of public resources, particularly for information which is likely A strong RTI system will also include a to be the subject of an access request. It is specialised oversight body, such as an far easier to publish a document online information commission or commissioner, than to respond to even one request for it. with the power to hear and determine Information should be published in as appeals against refusals of access or other user-friendly a manner as possible, in infringements of the law, as well as wider machine processible formats rather than powers to support strong implementation scanned versions of a paper document, and of the law. The oversight body should have with effective search facilities for finding adequate resources and statutory powers to the information. perform its functions, including the ability ! to order disclosure of information and to impose other structural remedies on public

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FURTHER READING ! • Andrew Puddephatt and Elizabeth McCall, “A Guide to Measuring the Impact of Right to Information Programmes”, United Nations Development Programme, April 2006: http://omec.uab.cat/Documentos/ddhh_comunicacio/0083.pdf

• Right 2 Info, a resource with right to information legislation and policies: http://www.right2info.org

• RTI Rating, a comparative analysis of right to information legislation around the world: http://www.rti-rating.org

• Toby Mendel, The Right to Information: A Comparative Legal Survey, UNESCO, 2008: http://portal.unesco.org/ci/en/ev.php- URL_ID=26159&URL_DO=DO_TOPIC&URL_SECTION=201.html

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BRIEFING NOTE 4 Independent Regulation of the Media

A number of important public interest against interference, particularly of goals are achieved through regulation of a political or economic nature, the media, and especially the broadcast including by an appointments media. It has traditionally been necessary process for members which is for regulation to serve as a gatekeeper transparent, allows for public input regarding access to the airwaves, a limited and is not controlled by any public resource. Regulation can also particular political party. promote important diversity goals, and prevent harmful content, for example for More recently, the UN Human Rights children, from being aired at inappropriate Committee (UNHRC) made the following times. Good legislation can support these statement (with specific reference to goals, but only where there is impartiality broadcast regulators) in its 2011 General and fairness in the application of the rules. Comment on Article 19 of the Without independent oversight, even the International Covenant on Civil and best regulatory rules can be turned into Political Rights (ICCPR): tools to suppress dissenting voices. Even if the laws are not overtly abused, the It is recommended that States presence of conflicts of interest can lead to parties that have not already done perverse regulatory decisions. In many so should establish an independent countries, political interference in and public broadcasting licensing regulatory bodies has historically been the authority, with the power to main concern but, in others, the greater examine broadcasting applications threat is of regulatory capture by powerful and to grant licenses. commercial media players. Regulators which are properly insulated against both Independence is important for all bodies political and commercial influences are that exercise regulatory powers over the best able to perform their duties in the media. However, many democracies public interest. impose only very light-touch regulatory constraints on the print media sector and In their 2003 Joint Declaration, the (then) do not have any specialised regulatory three special international mandates on bodies governing this sector. In these freedom of expression at the UN, the OAS countries, self-regulatory models, such as a and the OSCE noted the need for press council, are given preference over independence among media regulatory statutory bodies. However, independence bodies: is also an important value for self- regulatory bodies (see Briefing Note 6). All public authorities which exercise formal regulatory powers It is different in the broadcasting sector over the media should be protected where, as noted, statutory regulators often

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 13! ! BRIEFING NOTE 4: INDEPENDENT REGULATION OF THE MEDIA wield important powers, including insulate the process from political and licensing who may operate a media outlet. commercial interference. It is important to Independence is crucially important here, provide for a role for civil society and the especially if the public interest in media wider public, and to leave important diversity, a goal which should underlie decisions to representative bodies, such as broadcast licensing, is to prevail. a committee of parliament, rather than an Independence is also important in the individual. This should be supported by development and application of codes of rules on security of tenure for members broadcasting conduct, which touch directly which only allow for removal in on media content. Independent oversight exceptional circumstances, with clear also encourages investment in the procedural requirements and the broadcasting sector, among other things by possibility of judicial review. building confidence that regulatory decisions will be adjudicated fairly and that The legislation should include safeguards investments will be protected against against conflicts of interest, both political arbitrary action. and commercial. For example, better practice is to prohibit individuals who are One important measure to promote the employed in government, the civil service independence of regulatory bodies is to or a political party, or who hold an elected stipulate clearly in the enabling legislation office, from serving on the board. that they are independent. According to Individuals who hold significant financial the Council of Europe’s Recommendation interests in either the broadcasting or No. R(2000)23: telecommunications sectors should also be prohibited from serving on the board. Member States should ensure the Financial security is also central to the establishment and unimpeded independence of a regulatory body. The functioning of regulatory best way to achieve this is to set out the authorities for the broadcasting framework for funding clearly in the law, sector by devising an appropriate including the way annual budgets are legislative framework for this approved, and in a manner which is purpose. The rules and procedures insulated from political interference. governing or affecting the Providing for regulators to be funded from functioning of regulatory the fees which are charged for issuing authorities should clearly affirm broadcast licences can be both a logical and protect their independence. cost-recovery tool and a means of bolstering independence. At the same time, The enabling legislation should also many regulators either need to have these include structural measures to promote fees supplemented from or to remit excess independence. A key aspect of this is how fees to the general budget, so that the members of the governing board are budget approval process remains very appointed. At a minimum, the important. appointments procedure should be spelled out clearly in the enabling legislation. As important as it is to protect regulators Involving a wide range of actors in the from political and commercial appointments process – including interference, this does not mean they are nominations, review of shortlisted free to operate as they wish, without being candidates and the final selection – helps held accountable. Rather than reporting to

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the executive, however, better practice is It is important to note that the principle of for regulators to report to a multi-party independence applies to regulatory body, such as the legislature or a legislative decisions, and especially decisions which committee. Providing for public impact on individual broadcasters, such as participation in key decision-making licensing decisions and adjudicative processes, such as licensing, also helps to decisions based on the code of conduct. ensure accountability. Important decisions Government retains, however, a policy should also be subject to judicial review role, especially in relation to more and regulators should be required to important policy decisions, such as the publish an annual report, along with technology and timetable regarding the audited accounts. digital transition.

FURTHER READING ! • Kristina Irion and Roxana Radu, “Delegation to independent regulatory authorities in the media sector: A paradigm shift through the lens of regulatory theory” in The Independence of the Media and Its Regulatory Agencies: Shedding New Light on Formal and Actual Independence Against the National Context, 2013: http://www.ivir.nl/publications/irion/Radu_2013.pdf

• Steve Buckley, Kreszentia Duer, Toby Mendel, Seán Ó Siochrú, Broadcasting, Voice, and Accountability A Public Interest Approach to Policy, Law, and Regulation, 2008: http://www.press.umich.edu/pdf/9780472032723-fm.pdf !

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BRIEFING NOTE 5 Regulation of Journalists

The power of the media to influence public would … be in violation not only discourse makes journalists an attractive the right of each individual to seek target for illegitimate government control. and impart information and ideas Thomas Jefferson once famously remarked through any means of his choice, that if he had to choose between “a but also the right of the public at government without newspapers, or large to receive information newspapers without a government, [he] without any interference. should not hesitate a moment to prefer the The underlying rationale for this stems latter”. The media’s core role as a from the fact that the right to express mechanism for government accountability oneself through the mass media belongs to and as a primary source of news and other everyone, not simply to a selected group information necessitates a light regulatory who meet certain requirements (see touch. In democracies, journalists are not Briefing Note 1). In this respect, subject to any special form of regulation journalism is different from other although they do enjoy certain benefits and professions – such as being a doctor, a privileges. lawyer or an engineer – inasmuch as engaging in the subject matter of what Licensing those other professions do, unlike journalism, is not a human right. Licensing schemes for journalists, whereby individuals are prohibited from practising Licensing journalists is illegitimate because journalism unless they are licensed, violate it is susceptible of abuse and the power to the right to freedom of expression. General distribute licences can become a political conditions on who may practise tool. While the purpose of licensing journalism, such as a requirement to hold a schemes is ostensibly to ensure that the university degree, to have attained a task of informing the public is reserved for certain age or to belong to a particular competent persons of high moral integrity, professional association, are similarly the Inter-American Court of Human illegitimate. This was spelled out clearly in Rights rejected this argument, noting that a 1985 case decided by the Inter-American other, less restrictive means were available Court of Human Rights, which stated: for enhancing the professionalism of journalists. In practice, formal conditions It follows from what has been said on journalists have not been effective in that a law licensing journalists, promoting more professional journalism. which does not allow those who are not members of the “colegio” to Registration schemes, which formally practice journalism and limits require journalists to register themselves as access to the “colegio” to university journalists, are not common and they graduates who have specialized in would almost certainly fail to pass the test certain fields, is not compatible for restrictions on freedom of expression with the Convention. Such a law under international law. There is no reason

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for imposing such a requirement and it body. Second, access to accreditation represents a fetter on the freedom to benefits should be based on fair and practise journalism. objective criteria, including the size and type of audience reached. The UN Human Licensing or registration requirements are Rights Committee (UNHRC) has held, for even less legitimate in the digital age, as the example, that accreditation schemes which proliferation of bloggers and other are biased against freelance journalists are amateur newsgatherers has blurred the line not legitimate. Accreditation schemes between who is and is not a journalist. should also be open to digital journalists, With the democratisation of online media, again based on fair and objective criteria. it would be highly problematic to try and Finally, accreditation schemes should not restrict who can comment on events of be used to impose substantive reporting public importance, or report on their restrictions on journalists or be subject to experiences. withdrawal based on an assessment of the These standards are without prejudice to substance of a journalist’s reporting. the right of private associations, including private journalists’ associations, to set The special international mandates on standards for their members. freedom of expression elaborated on these principles in their 2003 Joint Declaration, Accreditation stating:

Freedom of expression includes a right to Accreditation schemes for be informed. As the eyes and ears of the journalists are appropriate only public, journalists play a key role in where necessary to provide them making this aspect of the right a reality. As with privileged access to certain a result, it is legitimate to provide for places and/or events; such schemes special or privileged access for journalists should be overseen by an to limited space venues where events of independent body and public interest are taking place, such as accreditation decisions should be parliaments and courts. The rationale for taken pursuant to a fair and this is not that journalists have special transparent process, based on clear rights to freedom of expression or to access and non-discriminatory criteria information but, rather, that such access is published in advance. necessary to protect the right of the public ! as a whole to receive information, which is Sources included in international guarantees of the right to freedom of expression. The right of journalists to refuse to divulge their confidential sources of information is The accepted method of ensuring that recognised in democracies around the journalists can access these limited space world and in international law. This has venues is through accreditation. Under been recognised by the UNHRC, which international law, certain principles apply stated in its 2011 General Comment No. to accreditation schemes. First, like all 34: regulatory systems, and to ensure that they are not abused as a means to influence the States parties should recognize and work of journalists, accreditation schemes respect that element of the right of should be overseen by an independent freedom of expression that

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embraces the limited journalistic can be validly invoked by anyone who is privilege not to disclose “regularly or professionally engaged in the information sources. collection and dissemination of information to the public via any means of mass The basic rationale for protection of communication” (see Council of Europe sources was set out very clearly in a case Recommendation No. R(2000)7). before the European Court of Human Rights, Goodwin v. United Kingdom, as Safety follows: Physical threats and attacks against media Protection of journalistic sources is workers which are aimed at silencing them one of the basic conditions for are an extremely serious interference with press freedom.... Without such the right to freedom of expression. As the protection, sources may be special international mandates on freedom deterred from assisting the press in of expression noted in their 2012 Joint informing the public on matters of Declaration: public interest. As a result the vital public-watchdog role of the press [V]iolence and other crimes may be undermined and the ability against those exercising their right of the press to provide accurate and to freedom of expression … reliable information may be represent attacks not only on the adversely affected. Having regard victims but on freedom of to the importance of the protection expression itself, and on the right of journalistic sources for press of everyone to seek and receive freedom in a democratic society information and ideas. and the potentially chilling effect an order of source disclosure has States’ obligations in this area can be on the exercise of that freedom, grouped into three separate categories. such a measure cannot be First, officials should never take part in, compatible with Article 10 of the sanction or condone attacks against the Convention unless it is justified by media or media facilities. This also an overriding requirement in the encompasses a positive obligation on public interest. senior authorities to publicly condemn attacks when they do occur. Once again, the jurisprudential basis for this is the right of the general public to receive Second, States should take effective action information rather than a special right of to prevent the occurrence of violent journalists to disseminate or access attacks. In their 2012 Joint Declaration, the information. As a result, although the right special international mandates on freedom to preserve the confidentiality of sources is of expression noted: often referred to as a right of journalists, it

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States have an obligation to take Finally, States have an obligation to launch measures to prevent crimes against independent, speedy and effective freedom of expression in countries investigations when attacks do take place, where there is a risk of these with a view to bringing the guilty parties to occurring and in specific situations justice and to providing an effective where the authorities know or remedy for the victim. The UN Human should have known of the existence Rights Committee, in its 1996 Concluding of a real and immediate risk of such Observations to Guatemala, stated that crimes, and not only in cases where these investigation should enable victims those at risk request State to discover the truth about the acts protection. committed, to learn who committed the acts and to obtain suitable compensation.

FURTHER READING ! • Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, 13 November 1985, Inter-American Court of Human Rights: http://www.corteidh.or.cr/docs/opiniones/seriea_05_ing.pdf

• Special international mandates on freedom of expression, Joint Declaration on Crimes Against Freedom of Expression, 2012: http://www.law- democracy.org/live/legal-work/standard-setting/

• UNESCO, UN Plan of Action on the Safety of Journalists and the Issue of Impunity, 2012: http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/official_do cuments/UN_plan_on_Safety_Journalists_EN.pdf

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BRIEFING NOTE 6 Print Media

“A free press” Albert Camus once said, work automatically once certain technical “can of course, be good or bad, but, mostly information has been provided. certainly without freedom, the press will never be anything but bad”. In contrast to Registration schemes should also not the broadcast media, where historically impose substantive conditions on the high entry barriers and limited spectrum media, not be excessively onerous and be availability demands a robust regulatory administered by an independent oversight framework to ensure content diversity, a body. In Gaweda v. , the European light regulatory touch is the best way to Court of Human Rights (ECHR) found ensure an independent and diverse print that refusing to register a publication on media sector. the basis that its name was “inconsistent with the real state of affairs” (a requirement Licensing and Registration in the Polish legislation) was an illegitimate interference with freedom of expression. Requirements The one exception to this might be where Under international law, it is illegitimate to the proposed name of a publication was require newspapers, or other publications, already being used by someone else. to apply for a licence in order to operate. These schemes fail the ‘necessity’ Even with these conditions, there is component of the three-part test. Although disagreement as to whether or not licensing schemes will prevent certain registration schemes are necessary. As the potential problems, such as defamatory or special international mandates on freedom obscene speech, the three-part test requires of expression stated in their 2003 Joint States to create a regulatory framework Declaration: which is minimally harmful to freedom of expression. Refusing or cancelling a Imposing special registration licence, a form of prior censorship, is an requirements on the print media is extreme interference with that right and far unnecessary and may be abused less intrusive means for addressing and should be avoided. Registration problematic content are available. systems which allow for discretion to refuse registration, which impose Registration schemes, which only require substantive conditions on the print publishers to provide certain technical media or which are overseen by information, such as the names of a bodies which are not independent publication’s owner(s), are less intrusive of government are particularly but should still be imposed with caution. It problematical. is important that the registering body does not have any discretion to deny or refuse registration. Rather than applying for Complaints Systems permission, a registration scheme should Although a free and unfettered press is of core importance to a democratic system,

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there is a legitimate need to promote members appointed exclusively by media professionalism in the media and to owners and journalists. As long as these provide the public with some sort of bodies operate independently from redress when minimum standards are not government, and are staffed by persons met. The pressure surrounding with appropriate expertise in media issues, competition for stories and audience share, they are also a legitimate form of for example, can promote unprofessional regulation. The imposition of purely behaviour. The need for a system of redress statutory regulation on the print media, against unprofessional media behaviour is which does not count on the active of particular importance in emerging involvement of media representatives, is democracies or post-revolutionary problematical from a freedom of contexts, where the media may be finding expression perspective. its footing after a prolonged period of repressive government. Moving from a Self-regulatory schemes are voluntary and system of near-total control to one which is so lack binding enforcement powers largely free presents serious challenges. beyond requiring an offending media Media outlets may lack a proper editorial outlet to print the council’s finding of a structure, or other institutional expertise, journalistic breach or to carry a right of to responsibly guide their conduct. reply. Even co-regulatory systems rarely have powers that go beyond this. Most systems of redress consist of an Nonetheless, the fact that press councils are oversight body – such as a press council – staffed by media experts and work in and a set of minimum standards – such as a dialogue with the media accords them code of conduct. In terms of the oversight significant moral authority, generating body, there is significant potential for strong professional pressure among the abuse where the government plays a role in media to operate in line with their handling complaints against the press. In standards. other words, as in other regulatory contexts, the need for independence is key. The mandate of press councils varies from Ideally, the print media will come together country to country. In many countries, in to create its own, self-regulatory system. In addition to hearing and resolving order to avoid being too close or biased complaints, these bodies play a positive towards the press, better practice is for the role in promoting press freedom and press council to be composed of members professionalism, for example by making of the media along with members of the recommendations on draft legislation and public. Practice varies regarding the code, other rules affecting the media and by which may be produced exclusively by producing guidelines on better journalistic media experts – for example by editors – or practices. which may be produced in a more broadly consultative fashion. Right of Reply/Correction Another approach is a co-regulatory The benefits of a right of reply, whereby the system, which involves a statutory body in claimant has a right to insert a reply in a which the media play a significant, though media outlet in response to a story or not necessarily dominant, role. For report, have been the subject of some example, the Indonesia Press Council debate. Because freedom of expression (IPC) is established by law but has its includes a right not to speak, there is no

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 21! ! BRIEFING NOTE 6: PRINT MEDIA question that enforcing a right of reply recognised, a request for a reply may be represents an interference. While some see refused in the following cases: it as a legitimate mechanism that uses a ‘more speech’ approach to addressing i. If the request for publication of the reply problematical speech and that ensures the is not addressed within a reasonably public will hear both sides of the story, short time; others see it as an unjustifiable restriction ii. If the length of the reply exceeds what is on editorial freedom. necessary to correct the information containing the allegedly inaccurate facts; The right of reply is specifically recognised iii. If the reply is not limited to a correction by Article 14 of the American Convention of the challenged facts; on Human Rights and by the Council of iv. If the reply constitutes a punishable Europe in its Resolution (74)26. The offence; ECHR, in Kaperzyński v. Poland, held that v. If the reply is considered contrary to a a right of reply was justifiable under the third party’s legally protected interests; European human rights framework, vi. If the individual concerned is unable to although they ruled that the penal show the existence of a legitimate sanctions imposed in that case were overly interest. harsh. In the , on the other hand, a mandatory right of reply for the International law has not given much print media has been struck down on the attention to the relationship between a right grounds that it is an unconstitutional of reply and a right of correction. However, interference with the First Amendment it is clear that a right of correction (see Miami Herald Publishing Co. v. represents less of an intrusion into editorial Tornillo). freedom than a right of reply. Therefore, in situations where it can adequately address a Further guidance on the appropriate problem, such as a direct factual error as application of this right is found in the opposed to more directed criticism, a right Council of Europe Resolution (74)26 which of correction should be the preferred recommends that while the right should be remedy.

FURTHER READING ! • Andrew Puddephatt, The Importance of Self Regulation of the Media in Upholding freedom of expression, 2011, UNESCO: http://unesdoc.unesco.org/images/0019/001916/191624e.pdf

• ARTICLE 19, Statement on the Draft Slovak Act on Periodic Press and News Agencies, 2008: http://www.article19.org/data/files/pdfs/analysis/slovakia-press- leg-st.pdf

• Centre for Law and Democracy and SEAPA, : Guidance for Journalists on Promoting an Empowering Press Law, 2012: http://www.law- democracy.org/live/myanmar-guidance-on-an-empowering-press-law/

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BRIEFING NOTE 7 Broadcast Regulation

Democracies impose more stringent providers, and safety and security services. regulatory regimes on broadcasting than In many countries, combined broadcast- on other forms of media. This is because, telecommunications regulators are unlike print media, broadcast signals have responsible for a wide range of frequency traditionally been distributed through a uses, while technological convergence has limited public resource, the radio meant that more and more countries are frequency spectrum, which limits the moving to this model. number of stations which can operate in any particular geographic location. The two main areas of broadcast regulation Without regulatory intervention in are in relation to licensing and regulation assigning frequencies to broadcasters, of content. chaos would reign and interference would render the entire system unworkable. The Licensing limited nature of the broadcast spectrum, and the resulting limits on the number of In democracies, the process of licensing broadcasters, also justifies regulatory broadcasters is overseen by a specialised, interventions to support diversity of independent regulatory body. As discussed content. Modern technologies are starting in Briefing Note 4, according to to change this. Cable, satellite and digital international standards this body should dissemination platforms have significantly be independent of both government and reduced the pressure on the frequency commercial players. Licensing should spectrum, while not doing away entirely promote the overall public interest rather with limits. In due course, however, the than the interests of any particular Internet will essentially defeat scarcity. At government or private actor. the same time, there are other reasons to Independence is particularly important if regulate broadcasters, including the one of the primary goals of licence intrusive and influential nature of regulation, namely promoting diversity in broadcasting, as well as its accessibility, the airwaves, is to be achieved. including to children. Independent regulation also promotes investment in the broadcasting sector since Frequency planning is an important way of businesses can be confident that licences ensuring that the allocation of frequencies will be awarded based on merit. to broadcasters takes place on a planned basis and in a manner that allows for the The licensing process should also be promotion of a diverse range of carried out in a democratic manner and, in programming in line with the public particular, it should be fair and interest, rather than simply allocating transparent. The importance of achieving frequencies to the first or highest bidder. these goals has been outlined by the UN Frequency planning requires coordination Human Rights Committee (UNHRC) in its among different frequency users: General Comment No. 34: broadcasters, telecommunications service

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States parties must avoid imposing financial resources and making a onerous licensing conditions and contribution to diversity, should be fees on the broadcast media, spelled out clearly in the rules. including on community and commercial stations. The criteria In most democracies, broadcasters are for the application of such required to treat matters of public conditions and licence fees should controversy with due balance and be reasonable and objective, clear, impartiality, which essentially makes it transparent, non-discriminatory unrealistic for broadcasters to be owned by and otherwise in compliance with or even linked to a particular political the Covenant. Licensing regimes party. However, although it is legitimate to for broadcasting via media with prohibit political parties from holding limited capacity, such as broadcast licences, other blanket audiovisual terrestrial and satellite prohibitions on the form or nature of services should provide for an applicants generally represent a breach of equitable allocation of access and the right to freedom of expression. frequencies between public, commercial and community Broadcast licences are normally awarded broadcasters. subject to certain terms and conditions, including with a view to promoting Part of this is to allow everyone to have an diversity and fairness in the system. equal opportunity to obtain a licence. The Because they represent restrictions on process for making applications should be freedom of expression, these conditions set out clearly and precisely in law. A need to be justified according to the three- framework of rules should be provided for part test outlined in Briefing Note 2. in the primary legislation, with more detail Conditions may be general or specific to specified in subordinate regulations, the licensee. General conditions may including specific calls for tenders or include technical criteria (which would applications. The framework should at normally apply to a class of licences), rules least include the following features: on copyright and licence duration and positive obligations, such as to carry a • Straightforward timelines for each step minimum quota of domestic or regional of the process (such as deadlines for programming. Specific conditions may filing applications, and the length of apply to individual licences, and examples time it will take for a decision to be might be a requirement for a licensee to made). carry a minimum quota of news or • A detailed explanation of the process children’s programming. and a requirement for the regulator to justify any refusals in writing. Regulation of Content • Applicants should have a right to a judicial appeal against any refusals to Unlike the print media sector, content issue a licence. regulation for broadcasters is rarely • The rules should include a clear undertaken on a purely self-regulatory framework or schedule of any charges basis and, instead, co-regulatory or and fees. statutory models are more common. Some • The criteria by which applications will countries relying on a co-regulatory model be assessed, such as technical expertise, leave content regulation up to an industry

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(or self-regulatory) body, but make it a often private broadcasters, to carry licence condition that the broadcaster programming which produced by belongs to that body (so that it must obey independent producers (i.e. producers who the decisions of the body or risk losing its are not connected to any institutional membership and hence licence). broadcasting station). Requiring Regardless of which model is in place, the broadcasters to carry independent need for independence is particularly productions broadens the production base, imperative in relation to content leading to a more intense competition of regulation, given the high risk of political ideas and in the sector and, as a interference. result, greater content diversity. This also helps to foster content producing To ensure that the public has access to a industries. It is common for public range of different types of programming, broadcasters to be subject to higher many countries impose certain positive independent production quotas. content obligations on broadcasters. One common example is to require In most democracies, broadcasters are also broadcasters to carry a certain amount of subject to certain negative or minimum domestic programming. The rationale professional requirements. As for the print behind this is to counteract commercial sector, this normally means that they are incentives to purchase content from required to respect the standards set out in abroad, which is often cheaper and easier a code of conduct developed through the than producing original programmes. co-regulatory or statutory regulation Absent such requirements, the overall system. These codes address a range of presence of local voices in the all- programming issues, such as accuracy, important broadcasting sector might be privacy, protection of children and the limited. Local content requirements also treatment of sensitive themes such as sex help to ensure that local culture is and violence. Again as in the print media protected and promoted through sector, these codes often form the basis of a broadcasting. complaints system. Unlike the print media sector, however, these codes are often also In many countries, national broadcasters used as the basis of direct monitoring by an are also required to carry a certain oversight body and the sanctions applied minimum percentage of local for breach of the rules range from light programming. Once again, this is to remedies (such as warnings or counteract commercial imperatives, since requirements to issue a correction) to more it is more expensive to produce different serious remedies (such as fines and even local programmes for different areas than the possibility of licence revocation). to provide unified national programming. There is clearly a public interest in ensuring that audiences have access to news about local, in addition to national, events.

Another requirement which is less common but still applied in many countries is to require broadcasters, especially public broadcasters but also

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FURTHER READING ! • ARTICLE 19, Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation, 2002: http://www.article19.org/data/files/pdfs/standards/accessairwaves.pdf

• Eve Salomon, Guidelines for Broadcasting Regulation, Commonwealth Broadcasting Association, 2008: http://www.cba.org.uk/wp- content/uploads/2012/04/RegulatoryGuidelines.pdf

• International Telecommunication Union, Guidelines for the transition from analogue to digital broadcasting, 2014: http://www.itu.int/en/ITU-D/Spectrum- Broadcasting/Documents/Guidelines%20final.pdf

• Toby Mendel and Eve Salomon, The Regulatory Environment for Broadcasting: An International Best Practice Survey for Brazilian Stakeholders, UNESCO, 2011: http://unesdoc.unesco.org/images/0019/001916/191622e.pdf

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BRIEFING NOTE 8 Media Diversity

Although the right to freedom of States’ positive obligation to promote expression operates primarily as a diversity includes making sure that all restriction on State action, the right also different types of media, and in particular imposes positive obligations on States to all three types of broadcaster – namely establish an environment which promotes public, commercial and community the free flow of information and ideas in broadcasters – are able to operate. society. A key element of this is the idea of media diversity, which broadly means that Commercial broadcasters, driven in part the media provides voice opportunities to by a profit motive, contribute to diversity and satisfies the information needs of all by bringing much needed resources as well stakeholders. In Informationsverein Lentia as the innovation and choice that are and Others v. , the European Court driven by competitive impulses. For of Human Rights (ECHR) stressed the commercial broadcasters, in line with their importance of media diversity: competitive orientation, a key requirement is that the licensing process should be fair, [T]he fundamental role of freedom transparent and competitive. of expression in a democratic society, in particular where, Public service broadcasters, by contrast, through the press, it serves to are not normally primarily driven only by impart information and ideas of competition, and especially not general interest, which the public is competition for resources, since they moreover entitled to receive. Such typically receive State-funding (see Briefing an undertaking cannot be Note 9). They contribute to diversity successfully accomplished unless it through their public service mandates, is grounded in the principle of which often include references to quality pluralism, of which the State is the and satisfying voice and information needs ultimate guarantor. of citizens that may be overlooked by commercial players. A key obligation in Diversity is complex and is often terms of public service broadcasters is to understood to encompass three different create them, in the first place, to respect elements: diversity of outlet (meaning their independence and to ensure that they different types of media), diversity of have sufficient resources to be able to fulfil source (meaning diverse ownership of the their public service mandates. media), and diversity of content (which refers to media output). Community broadcasting is defined broadly as non-profit broadcasting that is Diversity of Outlet provided by and for the members of a particularly community, whether a International law requires States to geographical community or a community guarantee freedom of expression “through of interest. These broadcasters also make any medium” (see Briefing Note 1). Part of an important contribution to diversity,

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 27! ! BRIEFING NOTE 8: MEDIA DIVERSITY providing voice opportunities to limits the ability of certain interests to communities which may be neglected or express their opinions and be heard. By the largely neglected by commercial and even same token, it gives large-scale owners public service broadcasters. disproportionate access to voice, allowing their views and perspectives to dominate. A number of conditions are necessary for Undue concentration of ownership can the community broadcasting sector to be also lead to free market or competitive able to thrive. Community broadcasters problems, such as higher prices for cannot normally compete openly with consumers or reduced incentives to commercial broadcasters in licensing produce resource-intensive or small-scale processes because they have far fewer programming, such as investigative or human, technical and financial resources. local reporting. Large media As a result, it is necessary to put in place conglomerates may also be able to engage special, light, licensing processes for in anti-competitive practices in relation to community broadcasters, along with much advertising, further exacerbating the lower, or even free, tariff schedules. problem.

It is also necessary to make special The importance of preventing excessive arrangements to ensure that community concentration of ownership in the media broadcasters can disseminate their signals sector has been confirmed by a number of through existing broadcasting platforms. international actors. In their 2007 Joint In the analogue broadcasting environment, Declaration, the special international this means protecting a part of the mandates on freedom of expression stated: frequency spectrum, through a frequency plan (see Briefing Note 7), for community In recognition of the particular broadcasters. There are different ways to importance of media diversity to do this. Some countries, including , democracy, special measures, Thailand and the United States, allocate a including anti-monopoly rules, fixed percentage of certain frequency should be put in place to prevent bands to community broadcasting; in each undue concentration of media or of those countries, 20 per cent of the FM cross-media ownership, both band is allocated to community or non- horizontal and vertical. profit broadcasting. In other countries, the allocation is left up to the broadcast The Declaration of Principles on Freedom regulator, sometimes with a legal of Expression in Africa states: requirement that the allocation of frequencies among the different types of States should adopt effective broadcasters be equitable. measures to avoid undue concentration of media ownership, Diversity of Source although such measures shall not be so stringent that they inhibit the The concentration of media ownership in development of the media sector as the hands of a small number of players is a a whole. threat not only to freedom of expression but to democracy itself. Undue media The specific rules will depend on the concentration reduces the diversity of specific market to which they apply; clearly viewpoints that citizens are exposed to and larger markets in larger countries will need

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different solutions than tiny island States. than two FM or AM radio licences or two While restrictions on undue concentration stations with substantially overlapping of media ownership are important, policy service areas. Similarly, no one who makers should also take into account the controls a newspaper may also control need to foster development in the both a and a radio licence. broadcasting sector; the rules should not be so strict as to undermine the economic Diversity of Content viability of the sector. There are a number of ways in which As an example of specific rules, in Canada, States can provide direct support for the regulator will not allow a transaction diverse content (i.e. in addition to the that gives a single entity control of more more indirect measures outlined above). than 45 per cent of the television market These include setting up funds to support and it will scrutinise very carefully the production of public interest content, transactions that result in a 35-45 per cent community broadcasters and/or other share, while in Italy, a newspaper publisher media sectors that are at risk. Systems to may not control more than 20 per cent of provide financial support for community total circulation at the national level and broadcasters are common in democracies, no more than 50 per cent at the regional and many countries also have funds to level. In the United States, there are very support newspapers which are struggling. detailed and precise rules on concentration of ownership and cross-ownership within States can also impose direct, positive the media sector. Laws can also apply to content obligations on broadcasters, for cross-media ownership. In South Africa, example to include a minimum percentage no one may control, directly or indirectly, of domestic or local content among their more than one television licence, or more programming (see Briefing Note 7).

FURTHER READING ! • Centre for Law and Democracy, Tuning into Development: International Comparative Survey of Community Broadcasting Regulation, 2013: http://www.law-democracy.org/live/unesco-community-radio-book-published/

• Organization of American States, Annual Report of the Special Rapporteur for Freedom of Expression, 2004: http://www.oas.org/en/iachr/expression/showarticle.asp?artID=459&IlD=1

• UNESCO, Indicators: A Framework for Assessing Media Development, 2008: http://unesdoc.unesco.org/images/0016/001631/163102e.pdf

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BRIEFING NOTE 9 Public Service Broadcasting

Public service broadcasters (PSBs) play a vital PSBs are normally expected to provide role in the media landscape. They can serve as programming both of broad appeal and of a source of diverse and high-quality interest to specialised audiences, often with a programming, particularly in ways which a focus on traditionally neglected areas such as pure market approach would not necessarily educational programming and programming support. PSBs can also serve to foster national directed at minorities. It is also common for identity within a framework of respect for PSBs to be required to ensure that their minorities, and to promote socially inclusive signals reach as large a portion of the and human rights respecting values. In a rich population as possible, which is natural given media landscape, PSBs can often set the tone, that they are publicly funded. spurring their counterparts in the commercial sector to produce higher quality Independence and more sophisticated programming. If PSBs are not protected against Mandate government interference, i.e. if they are not independent, they cannot effectively fulfil PSBs serve the public interest by their public service mandates. The complementing and extending the importance of this has been eloquently programming offered by commercial described by the Supreme Court of Ghana broadcasters, thereby enhancing diversity in New Patriotic Party v. Ghana in the media. To ensure that PSBs meet Broadcasting Corp.: programming needs that are responsive to the public interest and to ensure [T]he state-owned media are accountability in terms of programming, it national assets: they belong to the is important to set out a clear public entire community, not to the service mandate in law and/or regulation abstraction known as the state; nor for public broadcasters. This should be to the government in office, or to relatively detailed, without unduly binding its party. If such national assets the hands of public broadcasters. were to become the mouth-piece of any one or combination of the The precise mandate will vary from parties vying for power, democracy country to country but a number of would be no more than a sham. features are found in most countries. Comprehensive news and current affairs The need for independence among PSBs programming is a hallmark of PSB, and it also flows from international guarantees of is important that this be accurate, impartial the right to freedom of expression, as and balanced. In most cases, PSBs cover reflected in the following statement by the the proceedings of key decision-making UN Human Rights Committee (UNHRC) bodies, most importantly the legislature, in its General Comment No. 34: and provide in-depth coverage of developments at the national but also the States parties should ensure that international and local levels. public broadcasting services operate

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in an independent manner. In this government interference, since those who regard, States parties should guarantee would seek to influence the broadcaster their independence and editorial must pass through both the board and then freedom. They should provide the editorial team. funding in a manner that does not undermine their independence. Funding

Numerous Declarations adopted under the To properly fulfil their mandate, which guidance of UNESCO also note the normally includes delivering outputs over importance of independent public service and beyond what is expected from broadcasters, while the 2010 Joint commercial broadcasters, PSBs need to Declaration of the special international benefit from some form of public funding. At mandates on freedom of expression the same time, this funding must be provided expressed concern about public in a way that is insulated from government broadcasters being subject to political control, as part of the system of protecting “influence or control” which results in the independence of PSBs. them serving “as government mouthpieces instead of as independent bodies operating Good practice in this area is to provide in the public interest”. funding via an established licence or other fee, rather than directly from the government In practical terms, protecting the budget. In some countries, PSBs are funded independence of broadcasters can be through a mandatory levy paid by all achieved in many of the same ways as households which have a radio or television promoting the independence of broadcast set. While this has the benefit of providing regulators (see Briefing Note 7). In consistent levels of funding over time and is particular, it is very important to ensure relatively insulated from government that they are overseen by governing boards interference, it can be difficult and/or and that the way in which members are expensive to collect these fees. An alternative appointed to these bodies ensures their is to levy the fee alongside some other independence. centrally collected fee, such as the electricity bill, which minimises collection costs. There An additional level of protection is common are also some innovative approaches here, for PSBs through what is known as editorial such as Thailand, which funds PSB through a independence, which refers to the idea that tax on liquor and tobacco. editorial decisions should be made by professional staff (editors) instead of the In many countries, PSBs rely on a mixed governing board. This can be achieved by funding model, whereby some of their ensuring a clear separation between the funding is provided from public sources governing body (which has overall and some from commercial activities, responsibility for the organisation) and including advertising. Recommendation managers and editors (who are responsible 1878 (2009) of the Parliamentary Assembly for day-to-day decision-making). The of the Council of Europe refers to the governing body should oversee the work and following possible sources of funding: report to the government, while the professional staff should manage the The funding of public service media may organisation’s operations. This can operate be ensured, through a flat broadcasting as a sort of dual layer of protection against licence fee, taxation, state subsidies,

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subscription fees, advertising and important public resource. sponsoring revenue, specialised pay-per- view or on-demand services, the sale of Better practice here is for PSBs to be related products such as books, videos or accountable to parliament, rather than films, and the exploitation of their directly to government. This is achieved, audiovisual archives. for example, by requiring PSBs to submit annual reports, along with externally While a mixed funding model provides more audited accounts, to the legislature for its resources for PSBs and can also help enhance review. This can be supplemented by more their independence, excessive reliance on direct forms of public accountability, such commercial sources of funding can start to as an obligation to hold public meetings, erode the lines between PSBs and commercial conduct surveys and provide other means broadcasting. In the end, if the public wants by which the public can provide direct PSBs to provide additional services to what is feedback to the public broadcaster. PSBs available via commercial broadcasting, an should also be subject to the right to appropriate measure of public funding must information law, so that members of the be provided to achieve this. public can obtain information on request from PSBs, subject to legitimate exceptions Accountability (see Briefing Note 3). Another type of direct accountability is to require PSBs to Independence from government does not adopt codes of conduct regarding their mean that PSBs should not be accountable, behaviour and programming, and to put in ultimately to the people. This flows both place systems whereby members of the from the fact that they receive public public can complain about breaches of the funding and from the fact that they code. perform a public service and are an

FURTHER READING ! • ARTICLE 19, A Model Public Service Broadcasting Law, 2005: http://www.article19.org/data/files/pdfs/standards/modelpsblaw.pdf ! • Democratic Governance Group of United Nations Development Programme Bureau for Development Policy, Supporting Public Broadcasting: Learning from Bosnia and Herzegovina’s Experience, 2004: http://www.undp.org/content/dam/aplaws/publication/en/publications/democrat ic-governance/oslo-governance-center/ogc-fellowship-papers/supporting-public- service-broadcasting-learning-from-bosnia-and-herzegovinas- experience/PublicServiceBroadcasting.pdf ! • Toby Mendel, Public Service Broadcasting: A Comparative Legal Survey, UNESCO, 2011: http://unesdoc.unesco.org/images/0019/001924/192459e.pdf! !

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BRIEFING NOTE 10 Criminal Content Restrictions

Freedom of expression is a foundational A key problem with national security is the human right, but it is universally difficulty of defining it clearly, and the recognised that certain types of speech can tendency of both laws and decision-makers be harmful and that some speech is so in many countries to define it far too harmful that it should be criminally broadly. There is no clear definition of prohibited. Due to the severe nature of what constitutes ‘national security’ and criminal prohibitions, however, extreme even the Global Principles on National care must be taken to ensure that these Security and the Right to Information restrictions are not applied in a manner (Tshwane Principles), the leading which unduly restricts freedom of international statement in this area, expression. Common problems with eschewed definition. However, Principle 9 criminal restrictions on speech are that of the Tshwane Principles provides a list of they are drafted in unduly vague terms or categories of information that might that they are overbroad in application. legitimately be withheld on grounds of national security, giving a good indication National Security and Public of the scope of the concept. The list includes such items as “defence plans, Order operations, and capabilities”, “production, National security and public order are capabilities, or use of weapons systems”, interests of the highest order and, when “measures to safeguard the territory of the either is truly at risk, all human rights, and state, critical infrastructure, or critical even democracy itself, may be at risk. It is national institutions”, “the operations, thus accepted that, in appropriate sources, and methods of intelligence circumstances, freedom of expression may services”, and national security be restricted to protect these two interests, information provided by a foreign State. and this is mentioned explicitly in Article 19(3) of the International Covenant on It is clear from this that restrictions based Civil and Political Rights (ICCPR). on localised violence or ordinary criminal However, it is easy to succumb to the activities are not justifiable on the basis of temptation to unduly limit free speech in national security. Instead, the threat must the name of security, a risk that has relate to defence capabilities such as emerged all the more strongly in the weapons or intelligence to qualify. aftermath of the attacks of 11 September 2001 and the subsequent growth in global In order to prevent abuse of national terrorism and other national security security and public order rules, threats. As Benjamin Franklin once international courts have applied three famously said, “People willing to trade main principles. First, they have insisted their freedom for temporary security that these concepts be defined deserve neither and will lose both”. appropriately narrowly. For example, in its 2011 General Comment No. 34, the UN

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Human Rights Committee (UNHRC) stated: Together, these constraints help prevent States from abusing concerns about threats Such offences as “encouragement to national security to unduly restrict of terrorism” and “extremist freedom of expression. activity” as well as offences of “praising”, “glorifying”, or Hate Speech “justifying” terrorism, should be clearly defined to ensure that they Drawing the line between ideas and do not lead to unnecessary or opinions that are offensive but protected disproportionate interference with under the right to freedom of expression freedom of expression. Excessive and hate speech is difficult and often restrictions on access to controversial. However, the dangers of information must also be avoided. hate speech are recognised in Article 20(2) The media plays a crucial role in of the ICCPR, which is the only provision informing the public about acts of in the ICCPR that actually requires States terrorism and its capacity to to prohibit certain speech, specifically, operate should not be unduly “advocacy of national, racial or religious restricted. In this regard, hatred that constitutes incitement to journalists should not be penalized discrimination, hostility or violence”. for carrying out their legitimate activities. It is clear that restrictions pursuant to Second, they have insisted on a clear intent Article 20(2) must still meet the three-part requirement for the threat to national test imposed by Article 19(3). As the security or public order. For example, the UNHRC said in General Comment No. 34: Johannesburg Principles on National Security, Freedom of Expression and Access The acts that are addressed in to Information, a precursor to the Tshwane article 20 are all subject to Principles, state that expression may be restriction pursuant to article 19, punished as a threat to national security paragraph 3. As such, a limitation only if the State can demonstrate that “the that is justified on the basis of expression is intended to incite imminent article 20 must also comply with violence”. article 19, paragraph 3.

Third, they have insisted on a very close Article 20(2) is understood to incorporate nexus between the expression and the risk four key elements for speech to qualify as of harm. This is illustrated in Principle hate speech: intent, incitement, to the XIII(2) of the Declaration of Principles on proscribed results, and based on the listed Freedom of Expression in Africa: grounds. The first condition means that only speech which is intended to incite to Freedom of expression should not one of the proscribed results should qualify be restricted on public order or as hate speech. This has been clearly national security grounds unless reaffirmed by international courts, such as there is a real risk of harm to a the European Court of Human Rights legitimate interest and there is a (ECHR) in the case of Jersild v. Denmark. close causal link between the risk of In that case, the speech, by a journalist, was harm and the expression. intended to expose the existence of a racist

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subculture. It was, as a result, not based on their race or religion might cross considered to be hate speech and the the line. restrictions imposed by Denmark were a breach of the applicant’s right to freedom A number of additional conditions for hate of expression. speech legislation were set out in a 2001 Joint Statement by the special international The second condition, incitement, means mandates on freedom of expression: that there has to be a close and direct causal relationship between a statement • no one should be penalised for and the proscribed result before the statements which are true; statement may legitimately be prohibited. • no one should be penalised for the Where a statement actually leads to one of dissemination of hate speech unless it the proscribed results, this is obviously a has been shown that they did so with clear indication, but it is always possible the intention of inciting discrimination, that other factors were responsible. hostility or violence; Context is very important here. Statements • the right of journalists to decide how which may be unlikely to create hatred in a best to communicate information and peaceful context may do so in a more ideas to the public should be respected, unstable environment. particularly when they are reporting on racism and intolerance; Third, the statement must incite to one of • no one should be subject to prior the proscribed results. These include censorship; and violence, which is normally covered by • any imposition of sanctions by courts more general prohibitions on incitement to should be in strict conformity with the crime, and discrimination, which is itself principle of proportionality. prohibited in many countries, but also hatred, as a state of mind (i.e. an opinion, Obscenity which is itself actually protected under international law). The rationale for this is Obscenity is a relatively unclear area in that society should not have to wait until terms of restrictions on freedom of hatred actually manifests itself in action expression under international law, in part before providing protection to potential because while statements which are victims. offensive to some people are protected, States also have the power to limit freedom Fourth, the statement must incite to hatred of expression in the interest of public on the basis of nationality, race or religion, morals, subject to the three-part test (see although this has been extended to other Briefing Note 2). similar grounds, based on the idea of historical disadvantage and immutability, Obscenity is also very difficult to define such as ethnicity or , in and there is no universally applicable some other contexts. However, speech standard. At the same time, the UNHRC attacking political opponents on policy noted in General Comment No. 34 that grounds, for example, could never qualify this notion cannot be used to impose as hate speech. This also means that speech values derived from one tradition on which targets ideas (however harshly or others: unfairly) would normally be protected, while speech which attacks individuals

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The Committee observed in Covenant, except in the specific general comment No. 22, that “the circumstances envisaged in article concept of morals derives from 20, paragraph 2, of the Covenant. many social, philosophical and religious traditions; consequently, Consistently with this, a number of limitations... for the purpose of established democracies have repealed protecting morals must be based their blasphemy laws entirely while those on principles not deriving that have kept them rarely enforce them. exclusively from a single tradition”. Any such limitations must be There are a number of problems with laws understood in the light of which protect religious tenets and beliefs, universality of human rights and as opposed to individuals. In a democracy, the principle of non-discrimination differing ideas, including those relating to religion, should compete through open At the same time, both international and debate rather than fiat. This is particularly domestic courts have often recognised that true where a religion has political questions of morality are closely tied to influence, whether directly or indirectly. If national and local cultures and traditions. a party’s platform includes institutionalised religious ideas, it is clearly Blasphemy undemocratic to insulate these ideas from criticism or debate. Another problem with The right to practice one’s religion is a blasphemy laws is that they are unable to human right protected by Article 18 of the accommodate situations where religious ICCPR and the UNHRC has made it clear beliefs are directly contradictory, such as that this applies to atheistic as well as belief systems which believe in a single theistic beliefs. The intersection of this deity or multiple deities or no deity. In right with Article 19 (which protects addition, blasphemy laws are often freedom of expression) and Article 20 discriminatory since they tend only to (which requires States to prohibit hate protect the majority religion or only to be speech) necessitates a careful balancing applied in that way. Indeed, in practice around speech which relates to religious blasphemy laws are often used to repress matters. religious minorities, dissenting believers or atheists. Blasphemy laws which go beyond prohibiting the incitement to Administration of Justice discrimination, hostility or violence against adherents to a particular religious belief It is well established under international and apply to the denigration of that law that court hearings should be open to religion’s beliefs or symbols are no longer the public. Article 14(1) of the ICCPR regarded as legitimate under international states: law. As the UNHRC stated in its 2011 General Comment No. 34: All persons shall be equal before the courts and tribunals. In the Prohibitions of displays of lack of determination of any criminal respect for a religion or other belief charge against him, or of his rights system, including blasphemy laws, and obligations in a suit at law, are incompatible with the everyone shall be entitled to a fair

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and public hearing by a competent, such, must be subject to open public independent and impartial tribunal scrutiny.” In R. v. Koptyo, the Ontario established by law. The press and Court of Appeal noted eloquently the the public may be excluded from reasons for this: all or part of a trial for reasons of morals, public order (ordre public) As a result of their importance the or national security in a democratic courts are bound to be the subject society, or when the interest of the of comment and criticism. Not all private lives of the parties so will be sweetly reasoned. An requires, or to the extent strictly unsuccessful litigant may well necessary in the opinion of the make comments after the decision court in special circumstances is rendered that are not felicitously where publicity would prejudice worded. Some criticism may be the interests of justice; but any well founded, some suggestions for judgment rendered in a criminal change worth adopting. But the case or in a suit at law shall be courts are not fragile flowers that made public except where the will wither in the hot heat of interest of juvenile persons controversy…. The courts have otherwise requires or the functioned well and effectively in proceedings concern matrimonial difficult times. They are well- disputes or the guardianship of regarded in the community children. because they merit respect. They need not fear criticism nor need to At the same time, it is of the greatest sustain unnecessary barriers to importance to safeguard the authority and complaints about their operations particularly the impartiality of the or decisions. administration of justice. This may include prohibiting certain kinds of expressions, Despite this, in many countries such as lying to the court or intimidating unreasonably strict limits are posed on the witnesses. While the media generally have criticism that may be directed towards a right to report on legal cases, and indeed courts and judges. The only legitimate there is a strong public interest in ensuring interest that could need protection here is that the public are informed about ongoing the willingness of the public to continue to developments, as Article 14(1) makes clear, use the courts as the ultimate arbiters of there may be circumstances where media disputes, which is very rarely at risk. reporting may be limited, for example to protect the identity of children or victims.

The question of whether freedom of expression may be restricted to safeguard the authority of the judicial system is more controversial. In their 2002 Joint Declaration, the special international mandates on freedom of expression stated: “Special restrictions on commenting on courts and judges cannot be justified; the judiciary play a key public role and, as

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FURTHER READING ! • ARTICLE 19, The Camden Principles on Freedom of Expression and Equality, 2009: http://www.article19.org/data/files/pdfs/standards/the- camden-principles-on-freedom-of-expression-and-equality.pdf

• Amnesty International, Written contribution to the thematic discussion on Racist Hate Speech and Freedom of Opinion and Expression organized by the United Nations Committee on Elimination of Racial Discrimination, 2012: http://www.ohchr.org/Documents/HRBodies/CERD/Discussions/Racist hatespeech/AmnestyInternational.pdf

• Foundations, Global Principles on National Security and the Right to Information, 2013: http://www.opensocietyfoundations.org/publications/global-principles- national-security-and-freedom-information-tshwane-principles

• Toby Mendel, Study on International Standards Relating to Incitement to or Racial Hatred, 2006: http://www.concernedhistorians.org/content_files/file/TO/239.pdf

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BRIEFING NOTE 11 Civil Content Restrictions

Freedom of expression is not absolute and, Criminal defamation is not a as Article 19 of the International Covenant justifiable restriction on freedom of on Civil and Political Rights (ICCPR) expression; all criminal defamation makes clear, it can legitimately be subject laws should be abolished and to restrictions. However, these restrictions replaced, where necessary, with must be carefully designed so as to meet appropriate civil defamation laws. the three-part test for such restrictions set out in Article 19(3) of the ICCPR (see In addition to the fact that criminal Briefing Note 2). A number of civil law defamation laws are unnecessary, in restrictions on freedom of expression are, practice they are often abused through if crafted narrowly and with appropriate selective enforcement to protect the exceptions, legitimate, of which the two reputations of police, public officials and most important are defamation law and other powerful individuals who have close privacy law. connections to the government.

Defamation In addition to being civil in nature, defamation laws should incorporate a The proper purpose of defamation laws is number of safeguards against abuse. They to protect reputations, which is recognised should not be able to be invoked to protect under international law as a legitimate abstract concepts, such as the State or reason for restricting freedom of religious symbols, which do not have expression. Rules on defamation should reputations as such, and for similar reasons strike an appropriate balance between they should not protect abstract (i.e. non- safeguarding the public, and in particular legally enshrined) groups, although an political, discourse and providing adequate individual member of a group should be protection to individuals targeted by false able to sue if they can demonstrate harm to allegations. their own individual reputation. Corporations should be allowed to sue for A first step here is to limit defamation laws defamation in order to protect their often to the civil as opposed to criminal law valuable reputation, but public bodies sphere. Inasmuch as civil laws have proven should be prohibited from doing so due to to be effective in protecting reputations, the overriding importance of open including in the many countries which no criticism of public institutions in a longer have criminal defamation laws on democracy. Also, by virtue of the fact that the books, the more intrusive approach they represent the public, it is represented by criminal laws cannot be problematical for public bodies to spend justified. In their 2002 Joint Declaration, public funds bringing legal cases to defend the special international mandates on themselves against criticism. Officials, as freedom of expression stated: individuals, clearly have reputations which they should still be able to protect through defamation actions. However,

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 39! ! BRIEFING NOTE 11: CIVIL CONTENT RESTRICTIONS international courts have recognised that, Excessive sanctions, on their own, as public figures, they must be prepared to represent a breach of the right to freedom tolerate a greater degree of criticism than of expression, and this is particularly ordinary citizens. relevant in the context of defamation, where there has been a tendency for Better practice is to limit the scope of damage awards to escalate in some defamation laws to statements of fact, and countries. International law requires not opinions, given the absolute protection penalties for defamation to be under international law given to opinions proportionate to the harm done to the and the fact that opinions are by definition plaintiff, keeping in mind that the objective not susceptible of proof. Procedurally, of damages is to redress this harm and not defendants should always be given an to punish the defendant. When imposing opportunity to prove the truth of their pecuniary damages, courts should consider statements of fact, while they should never the potential chilling effect that these may be required to prove truth in the context of have on legitimate speech. Non-pecuniary an opinion, which is clearly impossible. remedies, such as a right of correction or reply, should generally be prioritised. To ensure an appropriate balance between free speech and protecting reputations, Privacy defamation laws should incorporate a number of defences. Truth should always Like freedom of expression, privacy is a be an absolute defence to a claim for human right, protected in Article 17(2) of defamation, based on the idea that one the ICCPR. One of the main challenges should only be able to defend a reputation with privacy is defining it clearly, a difficult that one possesses (and if the statement is task which has generally been avoided by true, one should not be able to hide it). courts. For example, in the case of Even where defendants cannot prove the Niemietz v , the European Court truth of their statements, they should still of Human Rights (ECHR) stated: “The benefit from a defence of “reasonable Court does not consider it possible or publication”, absolving the defendant of necessary to attempt an exhaustive liability if they can demonstrate that definition of the notion of ‘private life’.” dissemination of their statements was reasonable under all of the circumstances. It is generally agreed that privacy This defence is particularly important for incorporates both objective and subjective journalists, whose role of informing the elements. The former involves a public would be seriously undermined if determination of whether or not there they had to be absolutely certain of every exists a “reasonable expectation of fact before they published a story. Finally, privacy”, while the latter depends on the overriding importance of openness in whether, in fact, the individual involved certain contexts – such as legislative and had an actual expectation of privacy, which judicial proceedings – means that may depend on their personal values, statements made before these bodies, along attitudes and, importantly, their behaviour. with fair and accurate records of the proceedings before them, should be Interpretation of these standards varies protected against defamation liability. widely both between jurisdictions and in the context of different cases. Courts in the United States have identified four different

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types of privacy interests worthy of privacy, although this has been protection: considerably less true in the context of the right to information. 1) Unreasonable intrusion upon the seclusion of another; The leading ECHR case on this issue, the 2) Appropriation of one’s name or second case of Von Hannover v. Germany, likeness; involved a number of photos of Princess 3) Publicity which places one in a false Caroline of Monaco, focused mostly on the light; and illness of the reigning Prince of Monaco, 4) Unreasonable publicity given to one’s Prince Rainier, and the way his were private life. looking after him during his illness. The Court set out a number of principles to be In many ways, privacy plays an important taken into account in balancing freedom of role in facilitating freedom of expression, expression and the protection of privacy, particularly in the context of including: communications aimed at a limited audience. This is also true in the context of • the extent to which the publication online communications, where a sense of contributed to a matter of public anonymity in certain forums has been interest; credited with encouraging a freer and • the degree of fame of the person franker discourse online. States should involved and the subject of the report; refrain from establishing blanket or • the prior conduct of the persons untargeted programmes of involved; Internet communications and from • the content, form and consequences of putting in place bulk data retention the publication; and requirements for Internet or • the circumstances in which the photos were telecommunications service providers. taken. States should also refrain from interfering with the functioning of online In general, the Court showed a wide degree anonymisation software, such as . of latitude to any expression, even photos, which made a contribution to debate on a At the same time, and in perhaps more matter of public interest. high profile ways, privacy can come into conflict with freedom of expression, for More generally, the ECHR has identified a example where the media wish to publish number of factors to be considered when stories which include references to private determining the level of public interest in a matters. In these contexts, and also where particular matter. These include the prior the right to information comes into conduct of the persons involved, the conflict with privacy (i.e. where individuals content, form and consequences of the make requests for information that is publication, the circumstances in which deemed to be private), the accepted the alleged invasion of privacy took place approach is to undertake a public interest and the nature of the privacy interest at balancing, immunising the expression or stake. Individuals, such as celebrities, who providing access to the information where voluntarily open their private lives to this is in the overall public interest. In public scrutiny with a view to increasing applying this test, courts have generally their public profile and ultimately their favoured freedom of expression over financial wealth are considered to have

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 41! ! BRIEFING NOTE 11: CIVIL CONTENT RESTRICTIONS voluntarily surrendered a measure of the it is perhaps natural that data protection privacy to which they would otherwise be and privacy should be confused, but there entitled. are important differences between them. Data protection regimes apply to all Data protection regimes, which aim to personally identifying data, which is much limit the collection and processing of large broader than privacy. For example, one amounts of personal data, are related to may post one’s email online to facilitate but different from privacy protection. people making contact, but this does not These rules originally arose in response to mean one wants that email to be sold and the increasingly large amounts of data that traded as a commodity, resulting in a public bodies were holding on individuals, barrage of unwanted email advertisements. and the growing capacity of technology to allow for the manipulation of that data. Given their closely related subject matters,

FURTHER READING ! • ARTICLE 19, Defining Defamation Principles on Freedom of Expression and Protection of Reputation, 2000: http://www.article19.org/data/files/pdfs/standards/definingdefamation.pdf ! • Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 17 April 2013, UN Doc. A/HRC/23/40: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx

• Toby Mendel, Andrew Puddephatt, Ben Wagner, Dixie Hawtin & Natalia Torres, Global Survey on and Freedom of Expression, UNESCO, 2012: http://unesdoc.unesco.org/images/0021/002182/218273e.pdf !

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BRIEFING NOTE 12 Digital Rights

In the decades since its inception, the developing world averages 31 per cent. In Internet and other digital technologies addition to this global , many have revolutionised the global expressive States experience an internal divide landscape and become key delivery between wealthy, urban residents and mechanisms for a range of other social poorer, rural ones. benefits, including the protection of human rights. These benefits are so There are a number of ways in which important that there is a growing opinion States can and should promote greater that access to the Internet should itself be Internet penetration, especially where considered a human right. It is clear that markets cannot be expected to do this, the use of the Internet as an expressive including for poorer people and ‘last mile’ medium is protected as part of the right to rural areas. Regulatory mechanisms – freedom of expression. The importance of which could include pricing regimes, online communications has been universal service requirements and repeatedly recognised, including in the licensing agreements – can help foster 2011 Joint Declaration of the special greater access to the Internet. For example, international mandates for freedom of some countries require expression, which stressed “the service providers to charge equal rates in transformative nature of the Internet in rural and urban areas, effectively terms of giving voice to billions of people subsidising the rollout of rural broadband around the world, of significantly through the more profitable urban enhancing their ability to access connections. This process can be further information and of enhancing pluralism assisted through the provision of public and reporting”. financial support. Establishing ICT centres and public access points, and raising In their 2011 Joint Declaration, the special Internet awareness or are other international mandates for freedom of ways to expand access. expression made it clear that States should promote universal access to the Internet, The rise of the Internet has been stating: “Giving effect to the right to accompanied by legal challenges both in freedom of expression imposes an adapting existing legal regimes, such as obligation on States to promote universal defamation law, to the new access to the Internet.” Although access to communications environment and in the Internet has grown by leaps and developing new legal regimes to address bounds over the last twenty years, the new class of digital crimes that has providing universal and equal access emerged, such as online fraud and remains a challenge. According to the cyberstalking, as well as to protect new International Telecommunication Union opportunities, such as online commerce. It (ITU), the developed world has an average is important to note that many online Internet penetration rate of 77 per cent as crimes are not as new as they seem. Fraud, of 2013, while Internet penetration in the for example, is already prohibited in fairly

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 43! ! BRIEFING NOTE 12: DIGITAL RIGHTS general terms in most countries. While requirements involved in getting online enforcement techniques and definitions and partly due to the enormous and varied may need to be updated, States should potential for added communicative value avoid rushing to adopt new legislation that they can provide, for example by absent clear evidence that the existing legal providing search facilities or social media tools are insufficient. tools (like Facebook). In the offline world, the limited range of intermediaries – such While it is always important to consult on as publishers and broadcasters – were the development of legislation which normally held to the same standards of affects the right to freedom of expression, liability as primary authors. This is simply this is perhaps particularly important in not possible in the online world, due to the relation to the Internet, given its very different relationship between complexity, technical sophistication and ‘authors’ and intermediaries (imagine if rapidly evolving nature. Making sure that were legally responsible for every the concerns of a range of stakeholders are defamatory statement that its search taken into account can avoid clumsy and engine pointed to in a search). To address technically ineffective rules, as well as laws this, international law mandates that which prohibit innocuous or benign intermediaries should be shielded from behaviours along with harmful ones. liability unless ordered to take material Any restrictions which impact on freedom down. of expression on the Internet must, as with any communications medium, conform Many jurisdictions have adopted notice with general human rights standards, and take-down rules which require including the three-part test set out in intermediaries to take down material as Article 19(3) of the International Covenant soon as they are notified that it might be on Civil and Political Rights (ICCPR) (see problematical. This provides insufficient Briefing Note 2). Simply transferring protection for online speech since it regulatory regimes designed for other essentially grants a power of censorship or contexts to the Internet can be very veto to anyone who issues such a notice. problematical given how fundamentally Better practice is to require intermediaries differently it operates. As the special to take material down only after being international mandates for freedom of ordered to do so by an independent expression noted in their 2011 Joint oversight body, such as a court or Declaration: independent regulator and some democracies have adopted stronger “safe Approaches to regulation harbour” protections along these lines. developed for other means of communication – such as The Internet differs from earlier telephony or broadcasting – cannot communication tools in its truly global simply be transferred to the nature, with material uploaded anywhere Internet but, rather, need to be being instantaneously available to users specifically designed for it. anywhere. This gives rise to issues about jurisdiction in legal cases relating to A unique aspect of online communications Internet content. This has been a particular is the significant role that private problem in relation to defamation, with intermediaries play, partly due to the plaintiffs engaging in what has come to be sophisticated technical and infrastructural known as libel tourism, whereby they seek

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a plaintiff friendly jurisdiction in which to undermines the ability of Internet users bring cases. To address this, the special everywhere to communicate with people in international mandates for freedom of China. expression called for the following approach in their 2011 Joint Declaration: Another important Internet issue is the principle of . At a minimum, Jurisdiction in legal cases relating this rules out discrimination in the to Internet content should be treatment of Internet traffic. As the special restricted to States to which those international mandates noted in their 2011 cases have a real and substantial Joint Declaration: “There should be no connection, normally because the discrimination in the treatment of Internet author is established there, the data and traffic, based on the device, content is uploaded there and/or content, author, origin and/or destination the content is specifically directed of the content, service or application.” The at that State. Private parties should question of differential charges for carriage only be able to bring a case in a and receipt of material over the Internet is given jurisdiction where they can more controversial. While some advocates establish that they have suffered call for this to be prohibited, differential substantial harm in that charging has already started to take root jurisdiction (rule against ‘libel and it seems unlikely that it will disappear tourism’). completely. The rise of the Internet is posing a Another unique feature of the Internet is significant challenge to the established that it has enabled new, technologically system of protection of copyright and based, control systems, such as filtering property. The Internet has and blocking systems. While filtering facilitated a tremendous flowering of systems can enhance the ability of end creativity and the birth of new art forms. users to exercise control over the content However, it has also led to unprecedented that comes across their desks, filtering or levels of copyright infringement, due to the blocking systems imposed by the State ease with which digital files can be copied represent an unjustifiable form of prior and shared. While the rights of artists to censorship. In their most extreme forms – earn a living, including through digital of which the most famous and pervasive is sales, should be safeguarded, States should China’s “Great ” although similar ensure that exceptions to copyright (such systems are being explored or as fair use or fair dealing) are interpreted implemented in several States, including broadly and in a manner that is Russia, Ethiopia and – these appropriately adapted to the digital era. systems also pose a major structural threat They should also take care to avoid to the nature of the Internet. China’s Great imposing overly harsh penalties for Firewall not only limits the ability of infringement, in particular cutting off Chinese people to use the Internet, it also access to the Internet.

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FURTHER READING ! • Centre for Law and Democracy, A Truly World-Wide Web: Assessing the Internet from the Perspective of Human Rights, 2012: http://www.law- democracy.org/wp-content/uploads/2010/07/final-Internet.pdf

• International Telecommunication Union, ICT Facts and Figures, 2013: http://www.itu.int/en/ITU- D/Statistics/Documents/facts/ICTFactsFigures2013-e.pdf

• Special international mandates on freedom of expression, Joint Declaration on Freedom of Expression and the Internet, 2011: http://www.law-democracy.org/wp- content/uploads/2010/07/11.06.Joint-Declaration.Internet.pdf

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International Organisations Active on Freedom of Expression

Access Info Europe (Spain) www.access-info.org Amnesty International (United Kingdom) www.amnesty.org Arabic Network for Human Rights Information (Egypt) www.anhri.net/en Article 19 (United Kingdom) www.article19.org Centre for Democracy and Technology (United States) www.cdt.org Centre for Law and Democracy (Canada) www.law-democracy.org Committee to Protect Journalists (United States) www.cpj.org Commonwealth Human Rights Initiative () www.humanrightsinitiative.org Free Press Unlimited (Holland) www.freepressunlimited.org (United States) www.hrw.org (United Kingdom) www.indexoncensorship.org International Freedom of Expression Exchange (Canada) www.ifex.org International Federation of Journalists () www.ifj.org International Media Support (Denmark) www.mediasupport.org Internews (United States) www.internews.org Media Legal Defence Initiative (United Kingdom) www.mediadefence.org Pen International (United Kingdom) www.pen-international.org Regional Alliance for Freedom of Expression and www.alianzaregional.net Information (Uruguay) Reporters Without Borders (France) www.rsf.org Transparency International (Germany) www.transparency.org

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 47! ! GLOSSARY

Glossary

American Convention on Human Rights Democracy: A form of government where (ACHR): Also known as the Pact of San citizens freely elect the political leadership José, an international human rights treaty through regular elections based on adopted in 1969 (in force 1978) by States in universal and equal (or the Americas. participation) and which also includes a variety of mechanisms for direct citizen Broadcasting: Communication of audio or engagement in decision making processes. visual content in continuous blocks (programme schedules) intended for European Court of Human Rights: An simultaneous or subsequent reception by international court with responsibility for the public, traditionally on a radio or hearing and ruling on alleged violations of television set (but now via a variety of human rights among States which are digital devices as well). members of the Council of Europe, all of which have ratified the European Chilling effect: An action which inhibits a Convention on Human Rights. range of freedom of expression beyond what is strictly intended, most commonly Expression: Any act which involves as a result of the imposition of sanctions. seeking, receiving or imparting The core of the effect is that speech beyond (communicating) information and/or what is formally prohibited is affected, as ideas, regardless of the means (such as people steer well clear of the line of orally, via the Internet or even using Morse prohibition in an effort to avoid any risk of code). a sanction. Human right: Inalienable basic rights that Council of Europe: An intergovernmental apply universally and equally to every organisation aimed at promoting human being regardless of race, religion, cooperation among the wider community ethnicity or any other status. of European States (47 members as of June 2014) on key human rights issues. Inter-American Court of Human Rights: An independent international court with Customary international law: A form of the responsibility to hear and rule on international law which arises from alleged violations of human rights among established State practice. The basic idea is States which have ratified the American that some principles are so universally Convention on Human Rights and accepted recognised that, even in the absence of a the jurisdiction of the Court. formally binding treaty, they may be considered to be binding upon all States. International Covenant on Civil and Data retention: The preservation of an Political Rights (ICCPR): A legally archive of data, often of a personal nature, binding treaty guaranteeing a range of civil sometimes imposed as a legal requirement and political human rights. It had been on Internet service providers. ratified by 168 States as of June 2014.

48! ! FREEDOM OF EXPRESSION BRIEFING NOTE SERIES! ! GLOSSARY

International law: A set of legal rules to justify as restrictions on freedom of which are formally binding on States, both expression. Also known as prior restraint. in relation to one another and in relation to their internal conduct. These laws can Public interest: A complex and multi- stem from treaties or conventions, or can faceted term which is very important in arise from established State practice, terms of the human rights discourse. known as customary international law. Defining the public interest is a highly contextual exercise (i.e. it depends on all of International human rights standards: A the circumstances) but it can be set of binding or highly persuasive understood broadly as a consideration of interpretations of international human the range of benefits that are likely to rights. These standards are drawn from a accrue to society as a whole if a particular variety of sources, including international course of action is followed. jurisprudence and standard setting statements by authoritative actors such as Security of tenure: Protection, sometimes the special international mandates or for a fixed period of time, from being leading civil society groups. removed from a particular position or job unless certain limited conditions are met, Internet: A global system of usually requiring a showing of legitimate interconnected computer networks which cause, such as incapacitation or communicate with one another and corruption. thereby facilitate a number of applications, of which the most famous is the World Special international mandates on Wide Web. freedom of expression: Currently there are four special mandates, namely the UN Joint Declarations of the Special Special Rapporteur on Freedom of Rapporteurs: Annual joint statements by Opinion and Expression, the OSCE the special international mandates on Representative on Freedom of the Media, freedom of expression which focus each the OAS Special Rapporteur on Freedom year on a different theme, such as freedom of Expression and the African Commission of expression on the Internet or safety of on Human and Peoples’ Rights Special journalists. The statements are drafted with Rapporteur on Freedom of Expression and the assistance of Centre for Law and Access to Information. Democracy and Article 19 and are leading statements of international freedom of Telecommunications: Traditionally expression standards. systems which allowed for point-to-point (or the connection of several points) Net neutrality: A principle which rules out communication at a distance through discrimination in the treatment of Internet technical means, particularly electrical data and traffic, based on the device, signals or electromagnetic waves. content, author, origin and/or destination Technological convergence based on of the content, service or application. digital technologies is breaking down the barriers between broadcasting, Prior censorship: Restrictions imposed on telecommunications, the Internet and a particular form of expression, historically other digital forms of communication. most commonly on newspapers, before it takes place. These systems are very difficult

FREEDOM! OF EXPRESSION BRIEFING NOTE SERIES! 49! ! GLOSSARY

Tor: A computer program which uses encryption technologies to allow users to browse the web anonymously.

Transitional (or emerging) democracy: A political unit (generally a State) which is in the process of establishing and strengthening democratic institutions, particularly where the prior form of government was undemocratic.

Tshwane Principles: A set of principles developed by leading representatives of civil society, government and the security sectors on the appropriate limits of secrecy in the name of national security.

UN Human Rights Committee (UNHRC): A body of 18 independent experts from around the world with the responsibility of overseeing implementation of the International Covenant on Civil and Political Rights in various ways, including through deciding cases and by undertaking regular reviews of State compliance.

Universal Declaration of Human Rights (UDHR): The flagship United Nations statement of international human rights. Adopted in 1948 as a General Assembly Resolution, the UDHR is not formally legally binding on States, although many of the rights it proclaims are widely regarded as having acquired legal force as customary international law.

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