In Defiance of Common Sense: The Practical Effects of International Press Restrictions

Ronald Koven

“There are no principles contained in the Universal Declaration of Human Rights,” said the chief Chinese delegate to the assembled representatives of the countries in the UN system. This statement, made at one of the last preparatory conferences for the World Summit on the Information Society, was intended to justify his refusal to go along with a new declaration that any “information society” should be based on the principles of the Universal Declaration. Paradoxically, the Chinese assertion was so breathtakingly absurd that it underlined the importance that China attaches to the adoption of international texts that legitimize—or at least that do not delegitimize—its repressive practices. One might as well ask whether statements by international organizations, in and out of the UN system, on issues related to press freedom have any practical effects on the everyday activities of the news media in print, broadcast, and now the Internet? Common sense might suggest that public statements and word choices have insignificant impact on real life practices. We must keep reminding ourselves that this is simply not the case. It may indeed be true that some of the worst offenders against press freedom—such as Belarus, Burma, and Zimbabwe—do not care what the international community says, since they will continue to control the press regardless. But other authoritarian countries—led by China, Cuba, and Vietnam and joined at various times by a great variety of states such as Russia, Venezuela, Pakistan, Malaysia, Egypt, and Syria—spend enormous amounts of time and energy attempting to persuade the international community to adopt texts and measures that would justify the restrictions they place on free speech, press freedom, and other human rights.

The World Summit on the Information Society

A recent example was the UN’s December 2003 World Summit on the Information Society (WSIS) in Geneva, which was the culmination of two years of preparatory meetings. The negotiations were an excruciating exercise in damage control, but in the end, press-freedom groups were largely successful in averting notable backsliding. This was in part because Switzerland, the host country, is firmly attached to press freedom. The Swiss worked hard with press-freedom groups to help forestall some of the most damaging proposals so that their country’s name would not be associated with regression on press freedom. For instance, the Swiss president made a last-minute trip to Beijing just before the actual summit to appeal to Chinese leaders. Still, a follow-up summit will be held at the end of 2005 in Tunisia, a country that holds hundreds of political prisoners and regularly jails journalists for offenses such as disrespect for state institutions. Tunisia’s is one of the world’s cleverest regimes at creating a positive image for itself abroad. During the Geneva summit, the Tunisians confiscated copies of the summit newspaper, Terra Viva (published by the Third-World activist Inter Press Service), because it contained comments critical of Tunisia’s highly repressive free-speech/press-freedom record. Tunisian “truth squads” intervened, often very boisterously, at virtually every preparatory committee meeting where there was even mild criticism of their country. For their part, the Chinese made it known that they would compromise on their restrictionist stance provided that the summit accepted language authorizing the Chinese to control Internet traffic inside their country. This would have legitimized Chinanet, the Internet Service Provider system already in place. It acts as an Intranet instead of an Internet, preventing “undesirable” exchanges with the outside world. Internally, it monitors communications to detect deviant sentiments. Unlike countries that dress up their controls with appeals to positive-sounding objectives like protecting morality, promoting social harmony, economic development, and so forth, China has been frank to admit that it seeks political control—or “information sovereignty,” as the Chinese call it. In the two years leading up to the second World Summit on the Information Society in Tunis, governments will be lobbying to end the current system of strictly neutral rule-keeping for the Internet, which today is maintained by a technical, California-based corporation. In its place, countries as disparate as China and a number of West European democracies seek oversight by an intergovernmental body, with authority over content and ethics. Granting content controls even to “friendly” governments like France and Germany, not to speak of China and Cuba, would inevitably lead to the end of press freedom on the Internet. Some governments argued in Geneva for a new “Right to Communicate” in the final summit. They said this would improve upon the established press-freedom guarantees of Article 19 of the Universal Declaration of Human Rights. The “Right to Communicate” first surfaced in the 1980s as part of the controversial “New World Information and Communication Order”—an attempt by the Soviets and Third-World authoritarians to introduce a large variety of international press controls. While it has taken many ill-defined forms, one constant of the “Right to Communicate” has been that it provides governments and groups the right to space and air time in other people’s news media for “equitable” presentations of their views, taking away the freedom of the editors to decide what to run. Radical groups active at the first summit have indicated that they will continue their efforts to establish such a “Right to Communicate” in the future.

Justifying the Controls

The countries that seek international blessings for domestic controls are not only the usual suspects still in thrall to Communism or post-colonial authoritarianism. Some are allies of the West. Many quietly allow others to carry the ball for repression while they watch attentively for openings they can use to justify their own press-freedom restrictions. The “Stans”—the newly independent republics of Central Asia—are particularly adept at this approach. Even countries joining Western institutions such as the European Union, the Council of Europe, and NATO use such tactics. Such countries invoke standards contained in the laws of established democracies or in international laws and conventions to justify fining or jailing journalists and/or restricting or even closing down their news media outlets. For instance:

 Romania claims that a particularly broad and repressive state secrets law it has been considering is designed to meet NATO requirements.

 Bulgaria’s supreme court ruled that insult laws giving special protection to the state’s leaders simply followed models on the books throughout Western Europe, failing to note that those laws are considered anachronistic in the West.

 Turkey regularly justifies the jailing of Kurdish journalists and commentators by citing the European Human Rights Convention’s Article 10, which allows for restrictions on freedom of expression to maintain the “territorial integrity” of member states.

Moreover, the international community has often set poor examples with questionable actions against news media in countries and territories under international control, as in Bosnia, Kosovo, and Iraq. Would-be press controllers also justify their actions by exploiting the words of those speaking in the name of the UN and other international bodies. After a recent visit to the Ivory Coast, the UN Human Rights Commission’s newly named Special Rapporteur on the Right to Freedom of Opinion and Expression, Ambeyi Ligabo, attributed the very real problems of the press in a country prey to civil war to “the lack of regulatory mechanisms which entail obligations, responsibility and discipline amongst newspaper publishers and editors.” Such emphasis on media accountability, however well meant, is easily exploited by repressive regimes.

Media Restrictions by Established Democracies and International Institutions

Ligabo is not the only international official appointed to promote press freedom who wound up calling for restrictive measures. The first major public act of the newly appointed Representative on Freedom of the Media of the Organization for Security and Cooperation in Europe, Miklos Haraszti, was to issue a report in spring 2004 calling for severe new restrictions on news media in Kosovo. The report was a response to alleged incitement to intercommunal violence by news coverage of an incident in which three Albanian boys drowned in a river while fleeing Serbian taunters. Among other things, the OSCE report said, “In journalistic terms even the incident as such is not a fact until the respective authorities have confirmed it [italics original].” In like manner, the Committee of Ministers of the Council of Europe issued a “Declaration on Freedom of Political Debate in the Media” in February 2004 that took the position that political figures and public officials have the same rights of privacy as private persons. That statement flies in the face of the opinions of leading judicial bodies such as the Inter American Human Rights Commission, the U.S. Supreme Court, and Europe’s own Court of Human Rights that the press must be free to scrutinize public figures more than purely private persons. So strong was the reflexive desire of members of the committee of ministers to avoid public scrutiny that the ministerial statement was adopted even after the ministers were advised by their own international law experts that it would be a step backward for press freedom. Moreover, established democracies such as France, Italy, and Spain successfully pressured the Council of Europe to allow for the protection of governmental institutions, in addition to individuals, from defamation. Legal justifications were offered based on Italian and Spanish texts promulgated under Mussolini and Franco. In defiance of a UN Human Rights Commission statement that prison terms should never be imposed for expressions of opinion, the ministers said that incarceration would be acceptable as a “strictly necessary and proportionate penalty” for “defamation or insult by the media.” The Council of Europe has also insisted on issuing rules against “illegal and harmful content” in the news media. The vague and subjective notion of “harmful content” was adopted despite warnings from a number of distinguished lawyers of the dangers of abuse of such overly broad language. Meanwhile, the Parliamentary Assembly of the European Union has been seriously considering a bill subjecting Internet publishers to defamation actions in any country where contested material is downloaded. It would mean that media outlets that publish on the Internet would need to protect themselves against the often widely differing laws of other European Union countries, an endeavor that would be so burdensome as to have a major chilling effect on reporting and comment on other countries. The bill could also potentially be used to extend criminal defamation laws beyond a country’s own borders, even if they are in clear violation of accepted world press-freedom standards. Just such an outcome came about in Australia, where the Supreme Court ruled in December 2002 that Barron’s weekly of New York is liable under the defamation laws of Australia’s Victoria State—literally on the other side of the globe—for an article about an Australian businessman. Barron’s has next to no circulation in Australia, but the court held that the suit was valid given that someone in Victoria could have consulted the weekly’s Web site. Recently, the Russian news agency TASS called for the creation of a “World Council of News Agencies” in Moscow in fall 2004. TASS received support for the initiative from leaders of the UN and UNESCO as a contribution to promoting a “pluralistic information society” and “equitable access to free and independent information.” Given that TASS’s devotion to its government’s official line has not changed notably since it served as a leading Soviet propaganda organ, such a UN- endorsed council is unlikely to help create pluralistic, free, or independent information. In Iraq, the U.S.-led Coalition Provisional Authority imposed a 60-day ban of a weekly newspaper backing the violently rebellious cleric Moktada al Sadr in March 2004. The weekly, Al Hawza, was accused of inciting violence by reporting an allegation that some 50 Iraqi police cadets were killed not by a terrorist car bomb but by a rocket fired from a U.S. helicopter. Another reproach by the CPA was that the paper had compared CPA chief Paul Bremer to the deposed dictator Saddam Hussein. The ban was presented as part of the strategy to curb the violence that has followed the spring 2003 invasion. The ban not only contradicted the democratic principles the Coalition claims it is trying to bring to Iraq. It also touched off even more violence. Furthermore, authoritarian regimes are likely to see the ban as an example that justifies their own press controls.

The Role of Press-Freedom Advocates

Press-freedom groups such as the World Press Freedom Committee have waged many battles in the international arena. They played a major role in turning UNESCO into a champion of press freedom, even if vigilance is needed against occasional, mostly inadvertent backsliding. Press-freedom groups also worked to persuade U.S. officials not to allow security concerns after September 11, 2001, to supercede traditional U.S. support in international organizations for press-freedom concerns. In addition, these groups have turned the tide against the advance of “insult laws,” which give special protection to governments and their officials; moves to abrogate such laws have been seen in countries as widely separated as Chile, Costa Rica, Ghana, and Norway. Yet, no victory is ever final, and those seeking to restrict the media (often lurking in surprising places) are constantly on the lookout for new or updated ways to do so. So, press freedom groups must continue their work in defense of the public’s right to freedom of the press as a fundamental part of democracy.