(ARTICLE 19/IFEX) – The following is an ARTICLE 19 report on key issues and challenges facing freedom of expression, it follows an ARTICLE 19 seminar on International Mechanisms for Promoting Freedom of Expression: Statement Regarding Key Issues and Challenges in Freedom of Expression Agreed by: Santiago Canton, OAS Special Rapporteur on Freedom of Expression Freimut […]
(ARTICLE 19/IFEX) – The following is an ARTICLE 19 report on key issues and challenges facing freedom of expression, it follows an ARTICLE 19 seminar on International Mechanisms for Promoting Freedom of Expression:
Statement Regarding Key Issues and Challenges in Freedom of Expression
Agreed by:
Santiago Canton, OAS Special Rapporteur on Freedom of Expression
Freimut Duve, OSCE Representative on Freedom of the Media
Abid Hussain, UN Special Rapporteur on Freedom of Opinion and Expression
February 2000
Statement Regarding Key Issues and Challenges in Freedom of Expression
Distinguished participants at the ARTICLE 19 Seminar on International Mechanisms for Promoting Freedom of Expression(1) met from 25-26 November in London to discuss the specialised mechanisms for promoting freedom of expression – the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression.
The fundamental importance of freedom of expression and freedom of information as human rights has repeatedly been stressed by international bodies and courts, including the following statements by the UN General Assembly:
– Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated(2).
the European Court of Human Rights:
– [F]reedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man(3).
and the Inter-American Court of Human Rights:
– Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. … [I]t can be said that a society that is not well informed is not a society that is truly free(4).
Perhaps the most important value of freedom of expression is in underpinning democracy and public participation in decision-making. Without free access to information and ideas, and the right to express one’s own views freely, citizens cannot even vote properly, let alone take part in ongoing public decision-making that affects their lives. Freedom of expression is a right that belongs to everyone. At the same time, the key role of the mass media in providing information to the public and in acting as watchdog of government has been widely recognised.
The importance of a free flow of information and ideas to democracy and to respect for all human rights has led to the creation of the special mechanisms to promote freedom of expression and media freedom. The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression were the focus of the Seminar. Regional mandates are, however, still lacking in Africa, Asia and the Middle East.
Significant progress has been made in securing respect for freedom of expression, particularly in recent years. At the same time, there are major threats to respect for these rights in many regions and countries of the world, from both public and private actors. As we approach the new millennium, and as processes of globalisation intensify, both new opportunities – such as the Internet and digital broadcasting – and new threats – such as global media monopolies and attacks on public broadcasting – have emerged.
Participants at the Seminar on International Mechanisms for Promoting Freedom of Expression, taking into account both opportunities and threats to respect for freedom of expression, identified a number of key freedom of expression issues, as well as a number of ways to strengthen the capacity of the specialised mechanisms.
KEY ISSUES
Public Order and National Security
Restrictions on freedom of expression in the name of public order and national security should be imposed only where there is a real risk of harm to a legitimate interest
Restrictions purporting to serve public order and national security interests are often excessively broad and vague. To ensure that such restrictions do not exert an excessive chilling effect on freedom of expression, they should not be imposed unless they meet the conditions set out in the Johannesburg Principles on National Security, Freedom of Expression and Access to Information(5), including the following:
– there is a significant risk of imminent harm;
– the risk is of serious harm, that is to say violence or other unlawful action;
– there is a close causal link between the risk of harm and the expression;
– the expression was made with the intention of causing the harm.
Criminal Content Restrictions
Expression should not be criminalised unless it poses a clear risk of serious harm
Criminal sanctions for offences related to published content exert a significant chilling effect on freedom of expression. Many such restrictions are unnecessary because the expression in question simply does not cause serious harm. Examples of this are laws prohibiting the publication of false news and sedition laws, which often envisage penal sanctions. These laws should be repealed. In other cases, laws are worded excessively broadly, prohibiting even innocuous expression. Common examples of this are contempt and obscenity laws. These laws should be amended so as to limit their scope to expression which poses a clear risk of serious harm to a legitimate public interest.
Imprisonment
Imprisonment for expression-related offences should not be imposed except in the very most extreme circumstances
Imprisonment is widely regarded as an excessive sanction for expression-related offences. Imprisonment should not be imposed except in the very most extreme circumstances, specifically in the context of intentional incitement to imminent and serious lawless action.
Criminal Defamation
Criminal defamation laws should be abolished
Criminal defamation laws – including those that provide special protection to the Head of State or other public figures, such as desacato laws – are unnecessary to protect reputations. The threat of criminal sanctions – imprisonment and prohibitive fines, as well as suspended sentences with the threat of imprisonment in case of subsequent breach – exerts a significant chilling effect on freedom of expression which cannot be justified. Criminal defamation laws are frequently abused, being used in cases which do not involve the public interest and as a first, rather than last resort. Criminal defamation laws should be abolished and replaced with appropriate civil defamation laws.
Civil Defamation Laws
Civil defamation laws should take into account the importance of freedom of expression
Harsh civil defamation laws are often used in place of more overt forms of censorship and can effectively prevent open criticism of government, politicians and the powerful. Civil defamation laws should respect the following principles:
– public bodies should not be able to bring defamation actions;
– truth should always be available as a defence;
– politicians and public officials should have to tolerate a greater degree of criticism;
– publications regarding matters of public interest which are reasonable in all the circumstances should not be considered defamatory;
– damage awards should be proportionate to the actual harm caused and should take into account alternative remedies such as apologies and corrections.
Attacks on Media Workers
Those perpetrating attacks on journalists must be brought to justice
Attacks on and harassment of journalists and other workers in the media industry pose a very significant threat to independent and investigative journalism, to freedom of expression and to the free flow of information to the public. Complicity by government and public officials in these attacks is a gross abuse of power. Governments should devote sufficient resources and attention to ending the climate of impunity and bringing those responsible for attacks on journalists to justice.
Informal Censorship
Public officials should refrain from taking measures to influence or pressure those publishing material
Informal censorship refers to a variety of activities by public officials – ranging from telephone calls and threats to physical attacks – designed to prevent or punish the publication or broadcast of critical material. Whatever the manifestation, informal censorship is just as unacceptable as formal censorship.
Reporting on Conflict Situations
The media should not be excluded from conflict situations and efforts should be made to ensure their safety
Conflict situations are inevitably instances of the greatest public interest, often raising issues of fundamental humanitarian and human rights. Public scrutiny of such situations is essential to controlling abuse of rights and promoting accountability. Exclusion of media workers from gaining access to and reporting on conflict is a severe restriction on freedom of expression and the public’s right to know and should not be practices except where their presence would pose a clear risk to the safety of others. Instead of excluding media workers, authorities should, wherever possible, take appropriate measures to ensure the safety of those working in conflict zones.
Economic Measures
Economic measures should not be used to control or interfere with editorial independence
Economic measures designed to promote or hinder certain media or viewpoints, known as “structural censorship” – including preferential allocation of government advertising, government control over printing, distribution networks, or newsprint and the selective use of taxes – represent unacceptable government interference with freedom of expression and should be stopped. At the same time, States should take measures to promote an environment in which a diverse, pluralistic media, able to provide the public with a range information and different viewpoints, can flourish.
Hate Speech
Public authorities should not use the media to promote intolerance or hatred between groups
Racism and hatred against specific groups, and the actions that flow from them, are perhaps among the most insidious and pervasive ways of undermining effective enjoyment of rights for those who are their targets. An extreme example of this is the use of the mass media to promote genocide or racially-motivated attacks. Public authorities should never use the media to promote intolerance or hatred between groups.
Gender Equity
Equal access to and representation of women in the media should be promoted
Equal access to and representation of women in the media are crucial to ensuring proper coverage of issues of concern to women and of women’s perspectives. This, in turn, is essential not only to full participation of women in public decision making and to combating discrimination against them, but also to effective, sustainable development. Public authorities should take effective measures to combat discrimination against women and to promote access of women to the media. Public broadcasters are under an obligation to ensure that they are representative – in programming, staffing and as regards coverage of issues.
Freedom of Information
The authorities should adopt legislation providing for effective access to information held by public authorities
Freedom of information is crucial to open, democratic government and the effective exercise of the right to freedom of expression. Authorities should adopt legislation giving effect to this right which respects the principles set out in The Public’s Right to Know: Principles on Freedom of Information Legislation(6), including the following:
– the legislation should be guided by the principle of maximum disclosure;
– public bodies should be under an obligation to publish key information;
– public bodies should actively promote open government;
– exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and ‘public interest’ tests;
– individuals should have the right to appeal against a refusal to disclose information to an independent administrative body, which operates in a fair, timely and low-cost manner;
– the legislation should provide protection for ‘whistleblowers’ who release information on wrongdoing.
Privacy
Privacy laws should not inhibit investigative reporting in the public interest
Privacy, particularly to protect individuals from unwarranted interference in their private affairs, is widely recognised as a human right. Many countries have passed laws providing individuals with a right of action against non-state actors, such as the media, who invade their privacy. States should be careful when considering such laws to ensure that they do not unnecessarily inhibit investigative reporting and the exposure of corrupt and illegal practices.
Sources
Journalists should not be required to reveal confidential sources
Protection of confidential sources is essential not only to maintain the free flow of information to journalists, and from them to the public, but also for the personal security of journalists. Journalists should never be required to reveal their sources unless this is necessary for a criminal investigation or the defence of a person accused of a criminal offence and they are ordered to do so by a court, after a full opportunity to present their case. ‘Necessary’ implies that the information cannot be obtained elsewhere, that it is of great importance and that the public interest in disclosure significantly outweighs the harm to freedom of expression from disclosure.
New Technologies
Regulation should not inhibit the power of new technologies to promote diversity and to enhance access to information
New technologies, such as the Internet, and satellite and digital broadcasting, offer unprecedented opportunities to promote freedom of expression and information, the global exchange of information and ideas, and broadcasting diversity. Action by the authorities to limit the spread of harmful or illegal content through the use of these technologies should be carefully designed to ensure that any measures taken do not inhibit the enormous positive potential of these technologies. In particular, the crude application of rules designed for other media, such as the print or broadcast sectors, is not appropriate for the Internet. Similarly, regulatory regimes developed with terrestrial, analogue broadcasting in mind may be excessively restrictive if applied to satellite and/or digital broadcasting.
State Regulation of the Media
Media regulation should be independent of political interference and should not impose unnecessary restrictions on media freedom
Press laws which allow for government interference in the print media, or which impose unwarranted restrictions on published content or the operation of the print media, are unacceptable. All bodies with regulatory authority over the media, print or broadcast, should be fully independent of government. Processing of license applications should be open and transparent, with decisions about competing applications being made on the basis of pre-established criteria in the interest of the public’s right to know. In addition, the powers of broadcast regulatory bodies should be limited to matters relating to licensing and complaints.
Media Monopolies
States should take necessary measures to prevent excessive monopoly control over the media
Media monopolies can undermine the public’s right to receive information from a variety of different sources. State broadcasting monopolies do not serve the public interest and should not be imposed. At the same time, in some smaller markets, a monopoly newspaper may be the only way to provide access to local news. Rules on monopolies should be carefully designed to promote plurality of content, without providing the government with an opportunity to interfere in the media.
State-Funded Broadcasting
State-funded broadcasters should be fully independent of government, adequately funded and should promote diversity and pluralism
Public broadcasters should play an important role in promoting diversity and ensuring availability of programming that serves the interests and needs of all sectors and groups in society. Government control over state-funded broadcasters undermines these goals and the public’s right to receive balanced, impartial and diverse information. The independence of public broadcasters from government should be guaranteed both formally, by statute, and in practice. In addition, they should be adequately funded and able to exercise editorial independence in relation to news and other programming.
Election Reporting
The public media should provide balanced, impartial election reporting
During the period preceding an election, the public media should provide adequate balanced and impartial information to the public on election-related matters, such as parties, candidates and voter education. News, interviews and election programmes should not be biased and political parties should be granted direct access programme time on a fair and non-discriminatory basis. Overall programming should ensure that the public have sufficient access to information on parties and candidates to enable them to make an informed electoral choice.
Minorities and the Media
Minorities should be granted non-discriminatory access to the media
States should take effective measures to combat discrimination against minorities. This implies, for example, that boards of regulatory bodies should be representative and that regulations should not have the effect, either directly or indirectly, of preventing minorities from owning and running media outlets. Public broadcasters are under a special obligation to promote a culture of tolerance, to ensure that their staff is representative of the society as a whole, to produce programming that serves minority needs and interests, and to guarantee minorities appropriate access and visibility.
Children and Freedom of Expression
The expression rights of children, including the right to have their views heard, should be fully respected
The Convention on the Rights of the Child clearly establishes not only children’s right to freedom of expression, but also their right to have their views heard and to be given due weight in matters concerning them. States should take positive measures to ensure that children are given effective opportunities to provide input into public decisions affecting them, for example in the areas of education, health and prevention of crime.
STRENGTHENING THE CAPACITY OF THE MECHANISMS
Building Networks
Networks – involving the specialised mechanisms and NGOs – are a key means of enhancing the operational effectiveness of the mechanisms
Networks are a crucial way of promoting the goals of the mechanisms for a variety of reasons. They enhance the two-way flow of information, and promote co-operative activities and joint lobbying efforts. NGOs can provide timely information and other support to the mechanisms, enhancing their ability to take action while the mechanisms can lend effective weight to the activities of NGOs. There is a need further to develop existing networks and to build new ones where they do not already exist.
Promoting New Mechanisms
Regional mechanisms, currently in place in Europe and the Americas, need to be promoted in other regions
Regional mechanisms provide an important complement to the work of the UN Special Rapporteur and should be promoted in all regions, including through the Organisation of African Unity (OAU), the Association of South East Asian Nations (ASEAN) and the League of Arab States.
Resources
Adequate resources are essential to the effective work of the specialised mechanisms
The specialised mechanisms are primarily dependent on the generosity of individual States and their sponsoring inter-governmental bodies for resources – including staffing assistance, administrative support and funding to carry out specific activities. In the past, the mechanisms have not always been provided with adequate resources and this has undermined the effectiveness of their work. States and sponsoring IGOs should ensure that the specialised mandates have adequate resources at their disposal.
Co-operation Between the Mechanisms
Co-operation between specialised mechanisms can significantly enhance their work
Co-operation between the specialised mechanisms can promote synergy between their work and significantly enhance their effectiveness. Possible co-operative activities include:
– establishing a regular Working Group to develop joint positions and programmes;
– holding regular meetings between the representatives to share information and discuss ongoing work and opportunities for co-operation;
– presenting the reports of the other representatives to their own sponsoring bodies;
– relying on the reports and statements of the other representatives as part of ongoing lobbying and reporting activities;
– issuing joint statements;
– identifying other innovative joint activities.
1. ARTICLE 19 would like to express its thanks to the Human Rights Policy Department of the UK Foreign and Commonwealth Office which generously funded this Seminar.
2. Resolution 59(I).
3. This quotation now features in almost all cases before the European court involving freedom of expression. See, for example, Handyside v. United Kingdom, 7 December 1976, 1 EHRR 737, para. 49.
4. Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 70.
5. Adopted on 1 October 1995 by a group of experts in international law, national security, and human rights convened by ARTICLE 19, The International Centre Against Censorship.
6. ARTICLE 19, June 1999.
