Freedom of expression: General Principles

1.1       How important is freedom of expression and its corollary, media freedom?

 

Freedom of expression is seen as being extremely important for the well being of any society.  There is hardly any country in the world whose constitution does not give pride of place to this freedom.  Indeed, as the Inter-American Court of Human Rights once said,

 

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 … It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.[1]

 

The importance of this freedom was underlined by the Supreme Court of Israel in the following words:

 

Freedom of expression is closely bound up with the democratic process. It serves not only as a means and an instrument but also as an aim in itself. Freedom of expression is a superior right which, together with the similar right to freedom of conscience, constitutes the prerequisite to the realization of almost all other freedoms. The supreme value contained in freedom of expression remains permanent and unalterable.[2]

 

Similar sentiments have been expressed by the Supreme Court of the United States of America.  In one famous passage, Justice Cardozo of that court stated:

 

Freedom of thought and speech ... is the matrix, the indispensable condition of nearly every other form of freedom.[3]

 

1.2       What are the purposes that freedom of expression is intended to serve?

 

Although there are many theories on the philosophical bases and practical uses of free speech, it is generally agreed that the media serve a number of essential purposes in free and open societies.  The Supreme Court of India has identified four of these:

 

(a) to help individuals attain self-fulfilment;

 

(b) to assist in the discovery of truth;

 

(c) to strength the capacity of individuals to participate in the democratic process in society; and

 

(d) to provide a mechanism which will establish a reasonable balance between stability and social change in society.[4]

 

1.3       How far can the claims for free speech be carried by journalists?

 

Journalists can, and do, make strong claims for a maximalist view of free speech, which is understandable but slightly misplaced.  There is a widespread consensus that freedom of expression, like all other freedoms, cannot be absolute.  It has to be balanced against other equally legitimate interests in society, such as upholding public order, safeguarding national security, protecting the reputation of others, preserving the authority of the courts, and so on.  For those reasons, every society imposes certain restrictions on free speech and makes its exercise conditional on the requisite degree of responsibility being shown by its practitioners.

 

1.4       How does the law deal with freedom of expression?

 

There is considerable variation in this area.  For a start, every sovereign nation has the right to put in place its own arrangements, which includes laws, law-enforcement mechanisms and conventions, for the protection and promotion of free speech.  Secondly, attitudes towards free speech are often governed by the history of a country or by its religious or cultural ethos.  Some countries are, therefore, more liberal than others.  Even within countries, there might be differences in the manner in which freedom of expression may be given effect to.  For example, there may be local laws, based on particular circumstances, which require free speech to be regulated to a lesser or greater extent than in the rest of the country to take into account local sensitivities.  Furthermore, even an otherwise liberal society may tighten restrictions on free speech for particular periods to deal with serious emergencies which threaten public tranquillity or the security of the nation.

 

Generally speaking, constitutional provisions on freedom of expression lay down broad principles.  They underline the importance of free speech, declare freedom of expression as a basic right, and prescribe the grounds on which this right can be restricted.  It is then left to more specific laws, usually passed by the legislature, to describe in greater detail the circumstances and manner in which, and the extent to which, the restrictions can be placed.  Finally, the actual imposition of the restrictions is put within the domain of administrative orders, passed in most cases either by government ministers or by local officials such as commissioners of police or magistrates.

 

1.5       What are the legal best practices in this area?

 

In many countries, the courts have laid down certain standards for the protection and promotion of free speech which are seen as constituting good practice.  For example, the Supreme Court of India has, in a number of landmark judgments, ruled that, for any restriction that is imposed on freedom of expression to be constitutional, the following conditions will have to be met:

 

1. The restriction must fall within one or more heads of permissible curbs that can be placed on free speech;

 

2. The restriction must be reasonable, having regard to all the circumstances; and

 

3. The restriction must be authorised by law (and not imposed by executive fiat).

 

Likewise, the European Court of Human Rights has held that any restriction that is imposed has to be necessary in a democratic society, i.e. capable of being justified on the grounds of a pressing social need, and proportional to the objective for which it is sought to be imposed.

 

1.6       What are the international standards in this area?

 

There are a number of international instruments which deal with freedom of expression.  A comprehensive list of these is provided in Appendix ‘..’.  A starting point for most, if not all, of these instruments is the Universal Declaration of Human Rights, which was adopted without dissent by the United Nations in 1948, and which says that:

 

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.[5]

 

This ringing declaration has been expanded upon by the International Covenant on Civil and Political Rights, adopted by the United Nations in 1966, in the following terms:

 

1. Everyone shall have the right to hold opinions without interference.

 

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

 

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

 

(a) For respect of the rights or reputations of others;

 

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

 

In addition, various bodies and agencies of the United Nations have adopted a series of documents, including declarations, resolutions and communiqués which deal with particular aspects of the right to freedom of expression.  The legal value of these documents depends on a number of factors, notably the legal character of the body or agency which adopted it: some documents are, therefore, legally binding while others are merely persuasive or exhortatory. 

 

Recent years have also been a significant amount of activity in the evolution of legal standards on freedom of expression at the regional level.  Organisations such as the Council of Europe, the Organisation of American States, the African Union, and the Commonwealth, have formulated norms and guidelines on free speech, and these have been reflected in documents emerging from these bodies. 

 

Finally, there have been a number of initiatives at the non-governmental level which have supplemented standard-setting of the official bodies.  For example, a group of experts with specialist knowledge of national security matters put together a set of principles which they urged governments and the media to follow during times of crises.  These principles, called the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, seek to reconcile the tensions that frequently arise between free speech and security of the state.[6]

 

1.7       What are the main features of the right to freedom of expression as recognised by international law?

 

A careful reading of the international human rights instruments would reveal that the right to freedom of expression is a multi-faceted right.  For example, Article 19 of the UDHR and Article 19 of the ICCPR, two of the key documents in this category lay down that this right:

 

- is available to everyone, regardless of their race, religion, gender, colour, national status, educational attainments, nationality, political opinion, social origin, etc.

 

- includes the right to seek, receive and impart ideas (through, for example, reading newspapers, listening to the radio, watching television, accessing the internet, etc.);

 

- covers all kinds of information and ideas, including those which may be shock, offend or disturb others, and available in any form;

 

- transcends national and other borders, and can be exercised across frontiers;

 

- may be exercised through any media (e.g. books, newspapers, pamphlets, radio, television, drama, works of art, public meetings, etc.)

 

- requires state authorities not only to refrain from committing acts that interfere with its exercise, but to take measures which actively promote free speech.

 

1.8       Is prior restraint (i.e. censorship) of the media legal?

 

This is a question which calls for a nuanced answer.  Generally speaking, prior restraint, i.e. a requirement that the media submit material intended for publication to a designated censor who may veto publication or order modifications to the material, is deemed undesirable.  At least in so far as the press is concerned, prior restraint is very rarely carried out in practice: the only occasion when newspapers are subjected to prior restraint is during emergencies such as war, and even then on a limited scale.  However, prior restraint is not unusual in the case of motion pictures.  Most countries operate a system of certification which requires those intending to release any movie for public exhibition to screen the movie before a designated authority who may either: approve the film, with or without cuts, for public release; or rule that it is unfit for public exhibition.  The exception made for motion pictures is based on the widely accepted view that movies have an impact on the viewing public that is much stronger and much more immediate than printed material. The legal validity of censorship in relation to movies has been upheld in a number of court decisions around the world.[7]

 

Prior restraint in relation to printed matter and regular radio and television broadcasts has, by contrast, been viewed with much less favour, although it is not clear if any court has categorically ruled such restraint to be unconstitutional or otherwise prohibited.  The US Supreme Court has declared that “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity”[8] – a formulation which has been echoed by the UN Special Rapporteur on Freedom of Expression.[9]

 

The only international instrument that forbids prior restraint (except where such restraint is aimed at protecting children) is the American Convention on Human Rights.[10]

 

1.9       What role do the courts have to play in the area of free speech?

 

The courts in most countries play a vital role in defining the parameters of free speech and thus protecting and promoting freedom of expression, including the media’s freedom to discharge its functions effectively.  Since the law needs to be interpreted, and since the courts are the ultimate arbiters of how particular pieces of legislation should be construed and applied, almost every country has, over time, built up a substantial body of case law, also called ‘jurisprudence’, on free speech and its limits.  This case law serves as a guide for future cases, and is also often relied upon by courts in other countries.  For example, courts in Commonwealth countries (most of which are former British colonies and therefore share a common legal heritage with Britain) look to court decisions in both the United Kingdom – e.g. the Privy Council and the House of Lords – and other member-states of the Commonwealth when deciding cases in areas where the law might be similar.  There is also a growing tradition of courts in many parts of the world seeking inspiration from the Supreme Court of the United States which has built up an impressive body of case law on free speech issues, based on the very strong protection afforded to this freedom under that country’s written Constitution.[11]

 

This process of cross-fertilisation of ideas and legal principles has been aided in recent years by the advent of information and communications technology: there are now a number of easily-searchable databases containing very useful information of an international and comparative kind aimed at media practitioners and lawyers.  A list of some of the leading databases is provided in Appendix ‘..’.

 

1.10     To what extent may the media rely on international law in a national court?

 

Practice on this matter varies between countries, but generally speaking there are at least three possibilities.  Where the legal system of a country automatically makes the provisions of any international instrument (e.g. a treaty, convention or covenant) a part of domestic law when the government of the country has ratified the instrument, the media can ask a national court to apply those provisions straightaway.  Secondly, courts can be asked to apply the provisions of certain international documents such as the Universal Declaration of Human Rights in individual cases on the grounds that they are part of customary international law binding on all countries.  Thirdly – and less strongly – the media can urge the courts to apply principles derived from comparative jurisprudence in other countries when interpreting national laws that leave room for judicial discretion.

 

It is worth noting that not all countries allow for the provisions of international treaties to become part of their domestic law automatically.  Where this is the case, international law will only become binding if the national parliament or other law-making body incorporates the provisions of the treaties in domestic law.  Even where a national parliament has failed to carry out the incorporation, the media can plausibly argue that the authorities should not act contrary to the letter and spirit of a treaty provision.

 

There are numerous examples of national courts showing themselves to be receptive to international law, regardless of whether such law has been incorporated within the national legal system.  Sample the following observations of the New Zealand Court of Appeal in a case decided in 1987: 

 

Even though treaty obligations not implemented by legislation are not part of our domestic law, the courts, in interpreting legislation, will do their best comfortably with the subject latter and policy of the legislation to see that their decisions are consistent with our international obligations.[12]

 

The Supreme Court of Mauritius went even further and held that the jurisprudence of the European Convention on Human Rights – a treaty to which that country is not, and cannot be, a party – would be applied while construing domestic law in appropriate cases, given the similarity between the fundamental rights guaranteed by the Mauritian Constitution and the European Convention.[13]  A similar approach has been taken by the Supreme Court of India which noted that the rights guaranteed by that country’s constitution reflected quite closely the provisions of the International Covenant on Civil and Political Rights.[14]

 

1.11     Can the media avail of international mechanisms or procedures to advance its right to freedom of expression?

 

Yes, though it is by no means guaranteed that it will get the relief it is seeking, because even if an international mechanism or procedure accepts a complaint from, say a journalist, it may not have the power to enforce any decision that it may hand down.  Subject to this important caveat, there are a number of avenues open for redress under international law.

 

For a start, media practitioners can approach one or more of the working groups or independent experts appointed by the United Nations under its human rights mandate.  These groups or experts look into country specific or thematic issues and make periodic reports, which are often widely publicised.  Of particular importance in this context is the UN Special Rapporteur on Freedom of Opinion and Expression, an authority created in 1993, who has a wide-ranging mandate to investigate matters, including complaints from individuals, concerning free speech and to raise his concerns directly with governments.  The Special Rapporteur also has the authority to make urgent appeals on behalf of journalists who may be facing imminent threats to their human rights.[15]

 

Another forum to which the media can take its concerns is the Human Rights Committee of the United Nations which requires state-parties to the ICCPR to submit reports every five years on how they have given effect to the rights contained in that treaty.  The Committee, as part of its review process, accepts information from any source, including NGOs, on matters falling within its mandate, and used this information in forming its views, which are subsequently published.  Under a separate procedure which only applies to those countries whose governments have signed an Optional Protocol, the Committee may also receive complaints from individuals about violation of their human rights, and these complaints – called ‘communications’ in official parlance – are heard and adjudicated upon.

 

1.12     Does the right to freedom of expression contain any implied facets which would be of relevance to the media?

 

Yes.  The courts have been quite creative – and in some cases innovative – in deriving certain rights and entitlements from constitutional or statutory provisions guaranteeing freedom of expression.  They have held, for example, that a constitutional right to free speech required the government to open up the state-controlled electronic media, i.e. radio and television, to political broadcasts by politicians belonging to different parties, including those in opposition to the ruling party.[16]  A similar approach was taken by the Supreme Court of India which ruled, in a landmark 1995 decision, that airwaves and radio frequencies were public property over which neither the government nor any private entity could claim a monopoly, which meant that there should be even-handed and public interest-driven regulation of broadcasting.[17]

 

Another example of pro-free speech intervention by the courts can be seen in a judgment of the High Court of Zambia which, in a 1990 case, struck down a government order under which three state-owned newspapers had been directed by the country’s President to deny coverage, or advertising space, to an opposition party in the lead-up to national elections.  This action, said the court, was both discriminatory and a denial of the right to freedom of expression:

 

[I]n the case of newspapers they are supposed to be run on the basis of journalistic principles and ethics free from any outside interference. These principles dictate the coverage of all newsworthy events regardless of the source of such news. Anything less than this, and it is very easy for the general public to assess whether or not a given newspaper is working according to sound journalistic principles and ethics, is not acceptable from a publicly owned medium - print or other.[18]

 

In another case decided by the Supreme Court of India, the judges implied a ‘right to reply’, based on considerations of fairness, in relation to media operating in the public sector.  In this case, a public spirited citizen had published a report into the activities of an insurance company owned and operated by the state, but when the company criticised the report in an article that was published in its house magazine and he sought space to answer the criticism, he was rebuffed by the editor of the magazine.  The court held that this amount to a denial of the citizen’s right to freedom of expression.[19]

 

1.13     Are mandatory ‘right to reply’ schemes legal?

 

            Opinion is sharply divided on this controversial issue.  The American Convention on Human Rights is supportive of a statutory right to reply:

 

1.      Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.

 

2.      The correction or reply shall not in any case remit other legal liabilities that may have been incurred.[20]

 

On the other hand, the Supreme Court of the United States has rejected the idea decisively, arguing that:

 

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials - whether fair or unfair – constitute the exercise of editorial control and judgment.[21]

 

The legality of a mandatory right to reply scheme will therefore depend on the particular approach adopted in a country’s legal and constitutional system.

 

Interestingly, the Council of Europe, through its Committee of Ministers, has tried to strike a middle course on this issue and adopted a Resolution which recognises the right to reply but within limits.  The right would be negated if:

 

·                the request for publication of the reply is not addressed to the medium within a reasonably short time;

 

·                the length of the reply exceeds what is necessary to correct the information containing the facts claimed to be inaccurate;

 

·                the reply is not limited to a correction of the facts challenged;

 

·                it constitutes a punishable offence;

 

·                it is considered contrary to the legally protected interests of a third party;

 

·                if the individual concerned cannot show the existence of a legitimate interest.[22]

 

The same Committee suggested two further exceptions in relation to Internet-based publications, viz.:

 

·         where the reply is in a language different from that in which the contested information was made public;

 

·         where the contested information is a part of a truthful report on public sessions of the public authorities or the courts.[23]

 

1.14     What about provisions that require the media, esp. broadcasters, to carry official messages, communiqués, etc?

 

This is another controversial area of the law.  Some countries have provisions under which the media are compelled, on pain of penalties, to carry certain messages issued by the government.  Generally speaking, such provisions are seen as an unwarranted interference with the broadcasters’ freedom of expression, given their potential for abuse by politicians and bureaucrats.  However, they may be justified in situations of national emergency.

 

1.15     Are laws which require cable television operators to carry certain terrestrial channels compulsorily as part of their service legal?

 

Opinion on this matter is divided.  The intention behind such laws, which are usually referred to as “must-carry” laws, is usually benign, viz. to offer viewers and listeners a more balanced fare in terms of the coverage they receive.  However, “must-carry” laws are criticised on the grounds that they needlessly interfere with the cable operators’ freedom to choose their menu of channels, distort the free market, and show a patronising attitude towards viewers and listeners.  That said, such laws have been held to be legal,[24] and are seen as necessary to promote public service broadcasting.

 

1.16     Can the media claim any special rights?

 

Generally speaking, no.  However, as a vital organ of society whose contribution to the maintenance and promotion of the rule of law is significant, the media can, and does, enjoy certain privileges in most countries.  For example, journalists are routinely provided with access to certain events which are not necessarily open to the public, e.g. press conferences by government ministers.  They are also given specially reserved spaces and facilities to cover the proceedings of the courts, parliament, etc.  To avail of these privileges, the media must meet certain accreditation requirements, and the imposition of those requirements is deemed to be a reasonable burden on the media.

 

Occasionally, courts have protected the media from oppressive use of ordinary laws while emphasising that the media are not exempt from the application of such laws.  The Supreme Court of India has held, for example, that, although the press are required to pay taxes like all other business enterprises, any tax which showed “a distinct and noticeable burdensomeness” on the press and which indirectly had the effect of emasculating freedom of expression would trigger pointed scrutiny.  In one case, which involved the imposition of a tax on newsprint, the court, on a challenge from a newspaper, ordered the government to suspend further collection of the tax until it had conducted a study on the tax’s impact on the newspaper industry.[25]

 

The US Supreme Court went even further and struck down a law which imposed a special tax on newspapers enjoying circulations larger than 20,000 copies per week.  Such a tax, said the court, was unconstitutional because it amounted to “a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled.”[26]  Clearly, the impact of the measure would be more relevant in determining its legality than the intent behind its enactment.

 

1.17     What about anti-monopoly laws in relation to the media?

 

Most countries have laws to prevent undesirable concentration of economic power in the hands of one or a small number of businesses.  Such laws have been justified on grounds of equity and fairness and are usually recognised as both necessary and acceptable.  Many international legal instruments underline the need to avoid concentration of media power, and this has provided an additional basis for laws restricting market share, foreign ownership, and cross-ownership within the media sector.

 

However, where an anti-monopoly law is either discriminatory or has the effect of impacting particularly harshly on a media business, it may be subjected to special scrutiny by the courts on freedom of expression grounds.

 

Interestingly, a number of international bodies and national courts have held that state monopoly over broadcasting may amount to an unacceptable infringement of the right to freedom of expression.  As the African Commission on Human and Peoples’ Rights noted, “State monopoly over broadcasting is not compatible with the right to freedom of expression.”[27]  The European Court of Human Rights has endorsed this view, holding in one case that:

 

Of all the means of ensuring that [pluralism is] respected, a public monopoly is the one which imposes the greatest restrictions on the freedom of expression, namely the total impossibility of broadcasting otherwise than through a national station … It cannot be argued that there are no equivalent less restrictive solutions; it is sufficient by way of example to cite the practice of certain countries which either issue licences subject to specified conditions of variable content or make provision for forms of private participation in the activities of the national corporation.[28]

 

Even a state monopoly over the printing and distribution of newspapers may be suspect.[29]

 

1.18     Are accreditation schemes for journalists legal?

 

Generally speaking, yes.  They are normally put in place to ensure that the media are provided orderly access to places and events where there may be a shortage of accommodation.  The rules for accreditation need to be fair, and the scheme needs to be implemented even-handedly.  In the view of the United Nations Human Rights Committee, which had occasion to deal with the subject in a complaint adjudicated in 1999:

 

[The] operation and application [of an accreditation scheme] must be shown as necessary and proportionate to the goal in question and not arbitrary … The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent.[30]

 

1.19     Can a government require those intending to work as journalists to obtain and hold a licence?

 

Licensing of journalists is practised in some countries, though it is the exception rather than the rule.  The reason usually offered for such licensing is to ensure that the journalistic profession, like other learned professions, is properly regulated.  However, there is considerable divergence of view as to whether journalism is a profession which is amenable to state regulation, given that no specific qualifications are usually required for a person to express his views, including for publication to a wider audience.  For this reason, the view has frequently been expressed that licensing requirements for journalists are a violation of the right to freedom of expression.

 

Such a view was echoed by the UN Special Rapporteur on Freedom of Opinion and Expression who, in a joint Declaration issued with two other international experts in this area in 2004, asserted that journalists should not be required to be licensed or to register with any state-mandated body.[31]

 

The matter was also considered by the Inter-American Court of Human Rights in a decision handed down in 1985.  Adjudicating on a Costa Rican directive which obliged aspiring journalists to become members of a nominated association, the court ruled that any such requirement would be violative of the right to freedom of expression.[32] 

 

1.20     What about the imposition of minimum qualifications for those wanting to become journalists?

 

While educational qualifications may help in improving standards of journalism, the imposition of minimum qualifications has been seen as undesirable.  In 2000 the Inter-American Commission on Human Rights, an inter-governmental body, condemned the idea, arguing that:

 

Every person has the right to communicate his/her views by any means and in any form. Compulsory membership or the requirement of a university degree for the practice of journalism constitutes unlawful restrictions of freedom of expression.[33]

 

1.21     Can the media be subject to business regulation?

 

Yes, because most media enterprises are run as businesses, and businesses are invariably subject to regulation by the state.  This would involve, among other things, registering the business with a designated authority, specifying the location of its office, giving details about its owners, and so on.  There may also be a requirement to periodically file returns on the commercial aspects of the business.  As long as these requirements are enforced fairly and even-handedly, they are seen to be acceptable.

 

Where, however, a government seeks to single out the media for particularly harsh or onerous treatment – through, for example, a tough licensing regime – it may amount to a violation of international standards on freedom of expression.  Several such cases have arisen in recent years, and some of them have led to censure from international bodies.  In 1999, for example, the UN Human Rights Committee held that a law which conferred unfettered discretionary power on the government of Lesotho to grant or refuse registration to newspapers in that country was a violation of Article 19 of the ICCPR.[34]

 

1.22     Are advertisements protected by freedom of expression laws?

 

Yes, although in some countries they may enjoy a slightly lower degree of protection than ‘political’ speech.[35]  Interestingly, the UN Human Rights Committee has dismissed the idea of a variable approach in this area when it decided a case arising from Canada in which a Quebec law required all advertisers in the state to use both English and French.  The law was intended to protect the French-speaking minority, and the government argued that it could be justified on the basis of commercial advertising enjoying a lower level of protection than the expression of political ideas.  The Human Rights Committee saw no reason to make such a distinction, and held that there were other ways in which the interests of the French-speaking minority could be protected without infringing on the advertisers’ freedom of expression.[36]

 

Commercial speech has also been protected in Asian countries.  For example, the Supreme Court of India ruled in a 1995 judgment that an attempt by a state-owned telephone company to ban the publication by a private sector company of a ‘Yellow Pages’ directory infringed the latter’s right to freedom of expression which had been guaranteed by the Constitution of India.[37]

 

1.23     What happens when the government uses advertising as an instrument of control of the media?

 

This is a sensitive area which has given rise to considerable friction over the years.  Governments, as a rule, have large powers of patronage at their disposal in the form of advertisements, and some have attempted to use this power to control the media by either denying advertising to newspapers and television companies that are seen to be hostile or offering contracts to media outlets that are willing to project the government in a favourable light.  

 

This practice has drawn sharp criticism from international legal bodies and some national courts.  The UN Human Rights Committee has, for instance, declared that:

 

[T]he refusal of advertisement by the State and parastatal companies to newspapers which adopt a negative attitude against the Government … [is] inconsistent with a respect for freedom of the press.[38]

 

Similar sentiments have been expressed by some of the regional mechanisms for the protection of human rights.[39]

 

At national level, the following observations of the High Court of Andhra Pradesh in India are pertinent.  While accepting that no government could be compelled to offer advertisements to particular media outlets, the court held that, where advertisements were offered, there was a duty to act fairly:

 

It is not expected of the Government to exercise this power in order to favour one set of newspapers or to show its displeasure against another section of the press.  It should not use the power over such large funds in its hands to muzzle the press or as a weapon to punish newspapers which criticize its policies and actions.[40]

 

1.24     Do governments have any special responsibilities in relation to the media?

 

Yes. The right to freedom of expression guaranteed in international human rights instruments includes, in the opinion of many commentators, a duty on the part of governments to take such reasonable measures as are feasible and proportionate to protect journalists from threats, intimidatory actions, and violent attacks on their person and property.  No less importantly, there is also an obligation on governments to carry out prompt, thorough and impartial investigations into any attacks that the media may have been subjected to, despite the adoption of precautionary measures.  Several inter-governmental bodies, such as the European Court of Human Rights and the Inter-American Commission on Human Rights, have laid down guidelines in this regard.[41]


[1]               Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 Nov. 1985, Inter-Am. Ct. Hum. Rts. (ser. A) ¶ 70 (1985).

[2]               Kol Ha'am Company Lmt & Al-Ittihad Newspaper v. Minister of the Interior, High Court 73/53.

[3]               Palko v. Connecticut, 302 US 319 (1937).

[4]               See, e.g. Indian Express Newspapers (Bombay) v. Union of India, AIR [1986] SC 515, [1985] 2 SCR 287.

[5]               Art. 19.

[6]               The Johannesburg Principles are available online at www.article19.org/pdfs/standards/joburgprinciples.pdf.  They are reproduced in full text at Appendix ‘..’ to this volume.

[7]              See, e.g. K.A. Abbas v. Union of India 1970 (2) SCC 780.  See also, Wingrove v. United Kingdom, 25 November 1996, Application No. 17419/90 (ECtHR).

[8]              See, e.g. Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

[9]              Report on the mission to the Republic of Korea of the Special Rapporteur on Freedom of Opinion and Expression, UN Doc. E/CN.4/1996/39/Add.1, p. 8.

[10]             Art. 13(2).

[11]             The First Amendment to the U.S. Constitution explicitly guarantees the freedom of the press and couches this freedom in near-absolute terms.

[12]             Huakina Development Trust v. Waikato Valley Authority and Ors [1987] 2 NZLR 188 at 229.

[13]             DPP v. Mootoocarpen [1989] LRC (Const) 768 at 771.

[14]             See, e.g. Jolly George Verghese v. Bank of Cochin, AIR [1980] SC 470.

[15]             In exercise of his powers, for example, the Special Rapporteur in 2005 wrote to the governments of Kazakhstan, Turkmenistan and Uzbekistan, raising concerns about certain alleged abuses, including the intimidation of journalists, in those countries – see Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, 29 March 2005, UN Doc. E/CN.4/2005/64/Add.1, paras. 501-504, 946-951, 972-90.

[16]             Rambachan v. Trinidad and Tobago Television Co. Ltd and Attorney-General of Trinidad and Tobago, decision of 17 July 1985 (unreported).

[17]             Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal AIR 1995 SC 1236; 1995 SCC (2) 161.

[18]             Arthur Wina & Others v. the Attorney-General (1990) HP/1878 (High Court: Lusaka).

[19]             Manubhai Shah v. Life Insurance Corp. of India [1992] 3 SCC 637.  A similar approach has been taken by the High Court of Trinidad & Tobago: see, Rambachan v. Trinidad and Tobago Television Co. Ltd. and Attorney-General of Trinidad and Tobago, decision of 17 July 1985 (unreported).

[20]             Art. 14.

[21]             Miami Herald Publishing Co. v Tornillo, 418 U.S. 241, 258 (1974).

[22]             Resolution (74)26 on The Right of Reply – Position of the Individual in Relation to the Press, 2 July 1974.

[23]             Recommendation No. Rec(2004)16 on The Right of Reply in the New Media Environment, adopted 15 December 2004.

[24]             See, e.g. the decision of the US Supreme Court which upheld one such law in the case of Turner Broadcasting v. FCC, 512 U.S. 622 (1994).

[25]             Indian Express Newspapers (Bombay) v. Union of India AIR 1986 SC 515, [1985] 2 SCR 287.

[26]             Grosjean v. American Press Co., 297 US 233, 250 (1936).

[27]             Declaration of Principles on Freedom of Expression in Africa (Oct 2002), accessible at <www.achpr.org/english/_doc_target/documentation.html?../declarations/declaration_freedom_exp_en.html>.

[28]             Informationsverein Lentia v. Austria 24 November 1993, Application Nos. 13914/88, 15041/89, 15717/89, 15779/89, 17207/90, para. 39.

[29]             See, e.g. Concluding observations of the Human Rights Committee: Armenia, 19 November 1998, UN Doc. CCPR/C/79/Add.100, para. 20.

[30]             Gauthier v. Canada, 7 April 1999, Communication No. 633/1995, UN Doc. CCPR/C/65/D/633/1995, para. 13.6.

[31]             Joint Declaration of 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, 18 December 2003, accessible at <www.cidh.org/Relatoria/docListCat.asp?catID=16&lID=1>.

[32]             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.

[33]             Inter-American Declaration of Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights during its 108th regular session, 19 October 2000.

[34]             Concluding observations of the Human Rights Committee: Lesotho, 8 April 1999, UN Doc. No. CCPR/C/79/Add.106, para 23.

[35]             Demuth v. Switzerland, 5 November 2002, Application No. 38743/97.

[36]             Ballantyne and Davidson v. Canada, Communication No. 359/1989, UN Doc. CCPR/C/47/D/359/1989, 5 May 1993, Annex, para. 11.3.

[37]             Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. AIR 1995 SC 2438.

[38]             Concluding observations of the Human Rights Committee: Lesotho, 8 April 1999, UN Doc. No. CCPR/C/79/Add.106, para 23.

[39]             e.g. African Commission on Human and Peoples’ Rights, Declaration of Principles on Freedom of Expression in Africa (October 2002).

[40]             Ushodaya Publications Pvt. Ltd. v. State of Andhra Pradesh, AIR 1981 AP 109 at 117.

[41]             See, e.g. Miranda v. Mexico, Case 11.739, Report Nº 5/99, OEA/Ser.L/V/II.95 Doc. 7 rev., p. 755 (1998).