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OPEN SOCIETY MEDIA PROGRAM

The right to public expression:


A modest proposal for an important human right
Karol Jakubowicz

THE RIGHT TO PUBLIC EXPRESSION

Table of Contents

I. Introduction ...................................................................... 3 II. Freedom of Expression and Freedom of the Press: Where is the Right to Public Expression? ........................... 6 III. Freedom of Expression, Right to Communicate, Communication Rights ................................................... 13 IV. Semiotic Democracy in the Information Society .............. 19 V. Rethinking Human Rights .............................................. 23 VI. The Right to Public Expression: What can be done? ........ 28 1. Structural prerequisites ............................................... 28 2. Public participation in content production and management in PSB and other media ......................... 31 3. Universal connectivity and access to the Internet and other ICTs as well as capacity to use them; Encouraging general use of the Internet and other ICTs for self-expression and participation in public discourse .... 33 4. Reorienting the democratic process and the operation of the public authorities to bring closer a user-generated State .............................................. 37 VII. Conclusion ...................................................................... 40 Bibliography ................................................................... 41

OPEN SOCIETY MEDIA PROGRAM,

2010

THE RIGHT TO PUBLIC EXPRESSION

Karol Jakubowicz1

T HE RIGHT TO PUBLIC EXPRESSION :


A
M OD E S T P RO P OS A L FO R A N IM P O RT A NT H UM AN R IG H T
2

Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy; invent Writing, Democracy is inevitable ... Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in lawmaking, in all acts of authority. It matters not what rank he has, what revenues or garnitures: the requisite thing is that he have a tongue which others will listen to; this and nothing more is requisite. The nation is governed by all that has tongue in the nation. Democracy is virtually there.3

Thomas Carlyle (1840)

I. I NTRODUCTION
Let us remember Carlyles striking ideas. Let us also remember the use of the word publish by his contemporary John Stuart Mill, in his landmark work On Liberty (1859): individuals should have absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological, and freedom of expression for individuals is practically inseparable from their liberty of expressing and publishing opinions, which in turn is almost of as much importance as the liberty of thought itself. These thinkers have provided the inspiration for the present essay. The need to complement expression with publication that is listened to is key to the argument I set out here.

Karol Jakubowicz (Poland) was until recently Chairman, Intergovernmental Council, Information for All Programme, UNESCO. The present essay is written strictly in a personal capacity. The author wishes to thank Mark Thompson, Marius Dragomir and Stewart Chisholm of the OSI and Toby Mendel of ARTICLE 19 for their most valuable suggestions on how to improve the text. Here, and in quotations throughout this paper, underlining is added by the present author for emphasis.

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In my keynote address at the 1st Council of Europe Conference of Ministers Responsible for Media and New Communication Services (Reykjavik, 2829 May 2009), I said to the assembled ministers:
Let me present you with a challenge which at the same time is a call to greatness greatness to which you can and should aspire if you and the Council of Europe as a whole take the historic step of redefining freedom of expression into the right to public expression. What Article 10 of the European Convention on Human Rights calls the right to freedom of expression has always been an incomplete right, making it an important, but not wholly effective pillar of democracy. As President Kekkonen of Finland said many decades ago, the freedom of the press is the freedom of those who own it. The concept of the right to communicate, introduced in the 1970s, and the whole media democratization movement of the 1960s to the 1980s, testify to a feeling that all is not right with social communication, and to a strongly felt desire to go beyond the social communication arrangements of that time.

The right to communicate movement failed to achieve its stated goals because leaving aside all the political controversies surrounding the New World Information and Communication campaign of which it formed part no-one could imagine how the State could make freedom of expression a positive right by providing everyone with the means necessary to join the public discourse. Today, however, individuals do not need the State to give them the tools of public expression. Anyone with the right equipment and the right cultural and communication competence can, at least in democratic countries, broadcast their news and views to the entire world. In these circumstances, I called on the ministers to reconsider the practical meaning of Article 10, and to develop an interpretation in keeping with what is possible today, and was not possible when the Convention was adopted. Here I will seek to develop and argue for this idea. To do this, I will begin with a reconsideration of the concept of freedom of expression and of the notion that freedom of the press is its natural extension and offers a means of public expression for everyone. This will be followed by an attempt to retrace some of the highlights of evolving thinking on democratizing societal communication and the rise of conditions enabling individuals to speak to the whole nation. Then, it will be necessary to look at the fit between human rights, as traditionally understood, and the Information Society, in order to see whether it may not become necessary one day to take another look at the way those rights are formulated and indeed to proclaim new human rights. In this context, I will examine prospects for the introduction of a formally recognized right to public expression and, if these prospects are poor (as seems to be the case, for reasons I will look into), then ask what else can be done in the area of policy to ensure enjoyment of such a right within the existing human rights framework. A natural backdrop for this discussion is provided by Council of Europe work in the area of

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human rights. It will become clear that many elements of a policy framework needed to implement the right to public expression are already in place, or are now emerging. Let me immediately enter a caveat. Much of the following discussion concerns primarily developed and democratic countries. Obviously, developing economies and non-democratic political systems deny individuals many of the opportunities examined here. Nevertheless, the same issues are or will be of relevance and importance also for developing countries and, needless to add, for non-democratic regimes where the struggle for basic freedom of expression is still being fought.

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II. F REEDOM OF EXPRESSION AND FREEDOM OF THE PRESS: W HERE IS THE R IGHT TO P UBLIC EXPRESSION ?
Let us then begin with freedom of expression. There is no need to justify it here, but it may be useful to recall some of the reasons for it. One of the main justifications for the need to introduce and safeguard the right to freedom of expression are, of course, the needs of democracy. A Norwegian Commission on Freedom of Expression (1999), identified three principles as constituting the grounds for freedom of expression:

the principle of truth, the principle of autonomy (the individuals freedom to form opinions), and, precisely, the principle of democracy.

The Supreme Court of Canada has summarized the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours in the following way:

Seeking and attaining the truth is an inherently good activity; Participation in social and political decision-making is to be fostered and encouraged; The diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in generally tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.

A similar list of arguments used to support conceptions of free speech, and specifically of press freedom, is cited by Onora ONeill, an Irish philosopher. These are arguments:

from truth-seeking, from individual freedom of expression, and, again, from democracy.

An additional, and important, argument is, as Monica Macovei points out, that freedom of expression is not only important in itself but also plays a central part in the protection of other rights under the Convention. No international document in the human rights field, or constitution of a democratic country, can be complete without some form of words based on Article 19 of the Universal Declaration of Human Rights:
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.

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The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) formulates the same right in Article 10. Article 11 of the EU Charter of Fundamental Rights does the same and though it is shorter, pursuant to Article 52(3) of the Charter, the meaning and scope of the right to freedom of expression it guarantees are the same as those guaranteed by the Convention. The American Convention on Human Rights (1969) contains Article 13: Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or though any other medium of ones choice. Incidentally, the distinction between oral expression and expression in print or through other (mass) media is indicative of an approach that (unjustifiably, as we will argue below) conflates individual freedom of expression and freedom of the press. To return to the reasons why freedom of expression is so important, one of them, as we saw earlier, is that it is seen as a bulwark of democracy. Democracy, of course, requires free and pluralistic public debate and the operation of an independent public sphere. As the Norwegian Governmental Commission on Freedom of Expression put it in its 1999 report, An enlightened, active and critical public debate is the cornerstone of democracy. Let us therefore see whether the concept of freedom of expression is sufficient to guarantee that everyone can join the debate in a way that would carry their message to the general public. The answer, I believe, is no. To explain this, let us begin by considering what freedom of expression really means. The basic difference between a freedom and a right is, of course, that the former is a negative right (it permits or obliges inaction, i.e. non-interference with the enjoyment of a freedom), whereas the latter is a positive right (it permits or obliges action to create conditions for safeguarding the exercise of that right). Rights that are considered positive may include civil and political rights such as police protection of person and property, as well as economic, social and cultural rights such as public education, health care, social security, and a minimum standard of living. In other words, a right imposes an obligation on someone (most often the State) to act to safeguard peoples ability to exercise it. Rights that are considered negative may include civil and political rights such as freedom of speech, private property, freedom from violent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery and the right to bear arms (where appropriate). That freedom of expression is a negative right is clear from paragraph 2 of Article 10 of the ECHR which, far from imposing obligations on the State designed to guarantee the exercise of this right, only tells the State when it may legitimately restrict or interfere with the enjoyment of this freedom. Still, the Convention speaks of a right to freedom of expression. Can we therefore say that it contains a contradiction in terms? No, because it is a right to something else: to

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protection of that freedom. Article 13 of ECHR (and Article 47 of the EU Charter of Fundamental Rights) obliges national authorities or the legal system of the state to accord the right to an effective remedy to everyone whose freedoms (including freedom of expression) have been violated. This is confirmed by the case-law of the European Court of Human Rights. In the case of Refah Partisi (The Welfare Party) and Others v. Turkey (Applications nos. 41340/98, 41342/98, 41343/98 and 41344/98), the Court said: the State has a positive obligation to ensure that everyone within its jurisdiction enjoys in full, and without being able to waive them, the rights and freedoms guaranteed by the Convention. This principle was amplified in the Courts ruling in the case of zgr Gndem v. Turkey (Application no. 23144/93). There, the Court clearly defined the limits of what the State must do in this area. It recalled the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the States duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. It then went on to say: The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States, the difficulties involved in policing modern societies and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities. Clearly, then, the States main obligation is to protect the enjoyment of freedom of expression. There is even a hint of a chilling effect here: some governments could use this language to justify refusing to lift a finger in favour of positive action to protect freedom of expression! Luckily, few democratic governments behave in this way. Some, indeed, even go beyond the language and spirit of the ECHR by recognizing, as stated in Article 100 of the Norwegian Constitution, that It is the responsibility of the authorities of the State to create conditions that facilitate open and enlightened public discourse. Here, then, freedom of (public!) expression is seen as a positive right, matched by the responsibility of the State to take specific action to guarantee its exercise. This language was proposed by the Norwegian Governmental Commission on Freedom of Expression. In its report, it made much of the fact that given (as it puts it) that what is really important is not freedom of expression in the private sphere, but exercise of this freedom in the public sphere public authorities represent our positive individual rights in relation to the community:
In the context of freedom of expression, the obligations of the public authorities have therefore been extended from not standing in the way of free expression to actively providing for public discourse and free flow of information. That is to say that public authorities are today obliged to make provision for use of the potential of expressing opinions that was acquired by the public on establishment of the classic freedom of expression.

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The Commission noted that an extensive institutional structure is required to support freedom of expression. The responsibility for providing this infrastructure rests with public authorities, with the infrastructure comprising the school system, the institutional preconditions for science and art, the diversity of the media, etc., i.e. public cultural institutions such as universities, libraries, museums, broadcasting and the like, as well as the entire gamut of private institutions regulated and sometimes supported by public authorities, such as media, publishers, theatres, cinemas and other public meeting places. The legal regulations of access to information and communications are an important element of this extensive project, but constitute only part of the institutional framework. The history of freedom of expression, says the Commission, is primarily a history of how this institutional system has developed. This is fine as far as it goes, but it is clear from the text that the right to public expression is seen by the Commission as mediated by a variety of institutions, including the media. This brings us back to the question whether freedom of the press should indeed be seen as an extension of individual freedom of expression, and whether it is a sufficient guarantee of the individuals ability to engage in public expression. This view is disputable on grounds of practical experience and it is also challenged as a matter of principle. As far as practical experience is concerned, the media do have a representation obligation to represent the political and the social. Professor James Curran says that democratic politics is about expressing and managing real conflicts in society. This can and should be the role of journalism. Partisan journalism makes an important contribution to the functioning of democracy because it offers a way in which reality can be interpreted from the viewpoint of different social and political groups. It makes press representation meaningful and advances the public presentation of different sectional concerns and solutions, facilitating the mobilisation of pressure for a political response. At the same time, Curran argues that there should be a division of labour in which different sectors of the media have different roles, making different contributions to the functioning of the democratic system, promoting either conflict or conciliation. The second role is that of the core media sector its mass television channels and, in many countries, local monopoly dailies that are the central meeting places of society where different social groups are brought into communion with one another. These core media hold the ring: they should enable divergent viewpoints and interests to be aired in reciprocal debate, and alert mainstream society to the concerns and solutions of minority groups. The norm of journalism practiced by this core sector should be that of balanced journalism, typified by the reporting of different viewpoints expressed by the spokespersons of opposed groups. Its features pages and studio discussions should also provide a forum of debate open to different opinions. This core sector, says Curran, is also primarily responsible for informing the public. It should offer accurate and intelligent coverage of the news. Crucially, this means

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reporting not only major events but also the issues and problems that give rise to them. It means examining causes and consequences, not just happenings. Thus, the health of democracy requires that partisan media be counterbalanced by impartial core media, including public service broadcasting. By the same token, lack of such a counterweight to partisan media (e.g. in young democracies, where all media may be politically controlled) should be seen as an indication that democratic consolidation is not yet complete. Conventional partisan media, prominent in Europe, are often connected to, or seek to represent, a political party or social group. There are also numerous advocacy media linked to a particular cause or single-issue organisation. Both forms of adversarial journalism can strengthen the infrastructure of democracy. This often includes influencing content and practices of mainstream media, e.g. by finding openings for oppositional voices, media monitoring, campaigns to change specific aspects of representation. Yet, does this mean that all individuals feel they are represented in and through media content, or that they themselves have a tongue which others will listen to? By no means, and even if so, then only indirectly and vicariously, which is no longer enough for many of them. In any case, the democratic or public enlightenment function is not the only one that the media fulfill. Others include the business and entertainment functions, more and more often leading to a process of tabloidization of media content. These other functions may and do come into conflict with the first one, so that democratic functions, if pursued at all, are often hostage to the business needs and interests of publishers and broadcasters in circumstances of cut-throat competition. ARTICLE 19, the UK-based freedom of expression campaigning organization, noted in its 2009 statement, Western Europe: Freedom of Expression in Retreat in 2009, that
disproportionate weight is given [in the media] to the viewpoint of an exceptionally wealthy minority who may be prone to abusing their excessive market share to control editorial content and promote their own interests. Individuals in this powerful position are courted by world leaders and opposition politicians in an effort to establish good media relations and receive more favourable content. It is of additional concern that in several cases senior politicians have direct financial control over media enterprises.

The Parliamentary Assembly of the Council of Europe noted in a 2007 report on the state of European democracy that media are too often primarily business-driven institutions and, by prioritising their business interests over the service to the citizens and their democracy, they inevitably contribute to the distortion of democracy. A similar comment was made by the European Parliament in a resolution of September 2008:
there is a considerable risk concerning the medias ability to carry out its functions as a watchdog of democracy, as private media enterprises are

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predominantly motivated by financial profit; whereas this carries the danger of a loss of diversity, quality of content and multiplicity of opinions, therefore the custody of media pluralism should not be left purely to market mechanisms.

According to John Lloyd from the Reuters Institute for the Study of Journalism at Oxford University, British journalists have retreated from information: they have become obsessed with gaining power. Along the same lines, the CoE Parliamentary Assembly calls it a matter of concern that the media in many cases tend functionally to replace political parties by setting the political agenda, monopolising political debate and creating and choosing political leaders. If the media monopolise political debate and if journalism has become, as Lloyd puts it, an ego trip, then they do not speak for the public, or represent the public in what they do, but are a law unto themselves in pursuing the goal of more and more power. So much, briefly, for practical experience as a basis for the view that freedom of the press is not the proper basis for exercising individual freedom of expression in the public sphere. As for matters of principle, Professor Nordenstreng rejects the automatic leap from freedom of expression to freedom of the press:
it is a myth that the standard justification for press freedom based on the doctrine of free marketplace of ideas [with its mechanism of self-correcting truth KJ] comes from the classics of liberalism. Milton and Mill do not provide direct support for contemporary neo-liberalism and cannot be taken as the basis for a libertarian theory of the press.

Recalling the wording of Article 19 of UDHR (Everyone has the right to freedom of opinion and expression), Nordenstreng makes the following argument:
the subject of human rights and fundamental freedoms is not an institution called the press or the media but an individual human being. Therefore the phrase freedom of the press is misleading as it includes an elusive idea that the privilege of human rights is extended to the media, its owners and managers, rather than to the people for expressing their voice through the media The subject of the right here is everyone in the sense of all human beings Nothing in Article 19 suggests that the institution of the press has any ownership right to this freedom. And the word media appears as an open means for the use of everyone to seek, receive and impart information and ideas.

Nordenstreng contends that Article 19 of the UDHR stipulates that the media should be in the service, if not the ownership, of the people. It is a myth, he says, that the press and the media themselves enjoy protection of human rights and fundamental freedoms. Onora ONeill, too, argues that freedom of the press and more generally of the media cannot be justified or derived from claims for individual freedom of expression. At the

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time of John Stuart Mill, it may have been plausible to think that freedom of expression, freedom of the press and truth-seeking were natural allies. A free press could then be seen as serving individual freedom of expression, enabling individuals to reach one anothers beliefs and leading them to reflect on, and test the truth of, their own views. Today, however, the situation is different. Concentration of the media market and the impact of market forces on publishing are evident. Owners and editors seldom favour strong interpretations of individuals rights to express themselves: freedom of the press, says ONeill, is still limited to those who own one. In the traditional scheme of things, individuals enjoy freedom of publication only to the extent that they can publish letters to the editor, or be granted a right of reply, with both reporting and commentary controlled by the press and broadcasters. Thus, clearly, freedom of expression and freedom of the press must be seen as failing to provide a legal and conceptual springboard for claiming the individual right to public expression. As in the Norwegian case cited above, these freedoms need to be actively reinterpreted if they are to serve this function. It is not surprising, therefore, that there have been many efforts to go far beyond them by redefining human rights for that purpose. We deal with these efforts below.

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III. F REEDOM OF E XPRESSION , R IGHT TO C OMMUNICATE , C OMMUNICATION R IGHTS


Public communication has long been based on allocutory, one-to-many, one-way, topdown modes of communication. Hans Magnus Enzensberger has called this a repressive model of communication. It reflected social relations in general and thus favoured unequal and asymmetrical communication relationships and consequently determined the content of communication. This has long given rise to thinking about ways to change these undemocratic patterns of social communication. The German playwright Bertolt Brecht and his famous 1932 essay, The Radio as an Apparatus of Communication, have long been emblematic of this ambition:
Radio is one-sided when it should be two-. It is purely an apparatus for distribution, for mere sharing out. So here is a positive suggestion: change this apparatus over from distribution to communication. The radio would be the finest possible communication apparatus in public life, a vast network of pipes. That is to say, it would be if it knew how to receive as well as to transmit, how to let the listener speak as well as hear, how to bring him into a relationship instead of isolating him Any attempt by the radio to give a truly public character to public occasions is a step in the right direction.

Brechts words have continued to resonate as his ideas have been embraced by more and more people. As noted long ago by Brian Groombridge, the communication democratization movement in the UK began to gain momentum as early as the 1950s, when a new, educated and socially conscious generation discovered that the old oligarchy seemed to sit as securely as ever at the apex of democracy and, of course, the media. Still, it was the May 1968 generation that really launched the movement for social and media democratization, tied in with a reconsideration of human rights, as well as of the concept of citizenship. A new, complex notion of full and equal citizenship was seen as encompassing, in addition to civil, political and social rights, also cultural ones: rights to information, to experience, to knowledge and to participation. The movement dedicated to reforming and opening up existing media institutions and communication systems called for a new system that could ensure feedback, social access to broadcasting organizations and programme production at various levels, participatory programming, and indeed social self-management of the media. Gerhard Maletzke has proposed three ways of democratizing communication, namely Inter-action, Co-production and Co-determination (meaning that citizens should codetermine the general policy as well as the programming of the mass media). It was clearly realized that the democratization of communication formed part of a broader process of distribution of social power and influence in society, and could not succeed without it.

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This whole movement has borne fruit in the field of media policy in many countries in the form of regulatory and institutional solutions providing for individual or group access to the public via the broadcast media. This has included access programmes (allotting air time on public radio or television to political parties, trade unions and other social organizations), access cable channels in the US; free radio in Gemany; radio associative in France, neighbourhood radio in Sweden (where anyone could rent, for very little money, first a studio and then a transmitter to produce and broadcast content); recognition of, and support for, community media in many countries (and calls for their legal recognition and inclusion in the media system as a separate sector by the Council of Europe and the European Parliament), etc. In some European countries, press subsidies are expressly earmarked for minority publications and for boosting the diversity of the press market. In many countries, supervisory or governing boards of public service broadcasters are composed of representatives of socially relevant groups (as in Germany), turning them into parliaments whose decisions should reflect the general public interest, as emerging out of the clash of many group and sectoral interests. This is intended as a practical example of Co-determination, as proposed by Maletzke. In fact, the Council of Europes Recommendation CM/Rec(2007)2 on media pluralism and diversity of media content states: Member states should invite public service media organisations to envisage the introduction of forms of consultation with the public, which may include the creation of advisory structures, where appropriate, reflecting the public in its diversity, so as to reflect in their programming policy the wishes and requirements of the public. There was, however, more to this than just the idea of reforming existing media organizations. These debates provided the inspiration for the concept of the right to communicate. Brechts ideas found an echo in the right to receive and the right to transmit as the basis of any democratic culture (Williams, 1968); in each receiver a potential transmitter (Enzensberger, 1972); and in the right to communicate [as] ... a fundamental human right (Fisher, Harms, 1983), later supplemented by the view that a right to communicate includes a right to telecommunicate (Harms, 1985). A new normative press theory, the democratic-participant media theory, emerged at that time as a sum of new ideas on the social nature of communication. The debate on the right to communicate took place in the context of a heated, politically charged campaign by Third World countries, aided by the then Communist countries, to introduce a New World Communication and Information Order (NWICO). UNESCO served as the main battlefield of this campaign. The UNESCO-appointed International Commission for the Study of Communication Problems (known as the MacBride Commission, after its chairman, Sen MacBride), included among its 1980 recommendations this call for an expansion of rights:

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Communication needs in a democratic society should be met by the extension of specific rights such as the right to be informed, the right to inform, the right to privacy, the right to participate in public communication all elements of a new concept, the right to communicate.

It is not certain whether at that time the right to communicate had any chance of being recognized and accepted. It is certain, however, that it was doomed by being associated with the broader NWICO campaign. When the US, Britain and Singapore withdrew from UNESCO in the early 1980s in protest against what they perceived as an antiWestern bias of the campaign, and the threat it supposedly posed to the principle of the free flow of information, NWICO and the right to communicate were taken off the official international agenda. Nevertheless, the debate has continued, though away from formal international settings. One of many documents proclaiming the right to communicate is The Peoples Communication Charter, first drafted in 1993 and promoted by Professor Cees Hamelink, the Dutch media scholar, supported by the Third World Network (Penang, Malaysia), the Centre for Communication & Human Rights (Amsterdam, the Netherlands), the Cultural Environment Movement (USA), and the AMARC World Association of Community Radio Broadcasters (Peru/Canada). The following core principles emerged in the debates around the Charter:
1. 2.

All forms of information handling collecting, processing, storing, distributing, etc. should be guided by respect for basic human rights. Communication resources (such as frequencies) should be considered commons, should be accessible to all in fair and equitable ways, and cannot be regulated by market forces alone. Communication in society cannot be monopolized by governmental or commercial forces. People have a right to the protection of their cultural space. Information and communication providers should accept accountability for their products and services.

3. 4. 5.

The 1999 version of the Charter called for all people to have the right of access to communication channels independent of governmental or commercial control; fair and equitable access to local and global resources and facilities for conventional and advanced channels of communication; as well as for national and international assistance enabling people to participate in, contribute to, and benefit from the development of self-reliant communication structures. Clearly, by 1999 no answer had been found regarding the way the individual right to communicate and participate in the public discourse could be exercised in practice other than by relying on the State to make requisite resources and infrastructure available. The Charter appears to echo John Keanes 1993 call for:

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a new constitutional settlement which ensures that political power is held permanently accountable to its citizens... [The need for this settlement] is also the reason why the undermining of both state power and market power from below requires the development of a dense network or heterarchy of communication media which are controlled neither by the State nor by commercial markets. Publicly funded, non-profit and legally guaranteed institutions of civil society, some of them run voluntarily and held directly accountable to their audiences through democratic procedures, are an essential ingredient of a revised public service model.

This would have required massive restructuring of public service media and huge outlays for non-profit and legally guaranteed [media] institutions of civil society. Let us note in passing that recent years have actually seen progress on this front, in the form of acceptance in many countries of community media as a third sector of the media system, with new legislation introducing legal frameworks for their licensing and operation. If any public funding is available to assist them, however, it is usually woefully inadequate. Preparations for the World Summit on the Information Society (Geneva 2003 and Tunis 2005) reinvigorated the right to communicate debate, though the term used now was communication rights. Civil society organizations launched a campaign for Communication Rights in the Information Society (CRIS) and called for official recognition of these rights. They pointed out that communication rights are premised not only on holding opinions and seeking, receiving and imparting information all of which are rights pertaining to a single individual or entity but also on communicating; that is, on the completion of an interaction between people. These rights imply and seek to bring about a cycle that includes not only seeking, receiving and imparting, but also listening and being heard, understanding, learning, creating and responding. In its 2005 book, Assessing Communication Rights: A Handbook, CRIS grouped the family of rights that comprise communication rights within four pillars:

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Figure 1. Four Pillars of Communication Rights


E. F. A. D. B. C. International Democracy and Communicating Cultural Rights Communicating Civil Rights in Dimension of Participation in in the Public in Knowledge Communication Communication Communication Sphere Communication Rights Governance
Al: Freedom of expression. A2: Freedom of the press and media. A3: Access to, and ready availability of, public and government information. A4: Access to corporate information. A5: Diversity and plurality of media and content. A6: Universal access to relevant media. B1: A balanced knowledgesharing regime, with practical support measures. B2: Publicly funded knowledge enters the public domain. B3: Affordable and equitable access to all media for knowledgesharing. B4: Availability of relevant knowledge for all communities. B5: Widespread skills and capacities to use media, especially ICTs. Cl: Right to Dl: Communica- E1: The role of FI: Effective equality before ting in one's non-national, participation by the law, to mother tongue. transnational civil society in honour and and cross-border governance D2: Participation reputation. media and nationally. in the cultural communication. F2: Effective C2: Information life of ones privacy and data community. E2: The role and participation by protection. relevance of civil society in D3: Stimulate the international governance C3: Privacy of sharing of agreements. transnationally communication. culture and cultural identity. C4: Communication surveillance in public and workplace.

Given that communication rights encompass such a broad range of human rights, some might wonder what the added value of the concept of the right to public expression could be. The answer is simple: it makes explicit what is only implicit and not very clearly so in the way communication rights are understood. If we look at Pillar A, Communicating in the Public Sphere, we will discover very little emphasis on individual communication in the public sphere. Instead, communication rights are to be realised through the intermediary of the mass media. There is, I would argue, a major qualitative difference between a general concept of communicating in the public sphere and a clear and unequivocal recognition of a right to public expression. The former leaves the modalities of such communication vague and unspecified, with the implication still being that this can be achieved via intermediaries of various kinds. The latter clearly signifies that, in the language of all human rights standards, everyone should have a recognized right to join the public discourse in a personal capacity.

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Meanwhile, as has already been said, individuals no longer need the mass media to distribute their news and views around their own society, indeed around the world. What this means for the right to public expression is explored below.

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IV. S EMIOTIC D EMOCRACY S OCIETY

IN THE I NFORMATION

The advent of the Information Society has been caused by, and has also promoted a process of, technological and market convergence. This has changed traditional mass media and has driven the emergence of new forms and modes of communication. What we are seeing is the emergence of new media, defined by Gustavo Cardoso as all those means of communication, representation and knowledge in which we find the digitalization of the signal and its content, and which have dimensions of multimediality and interactivity. This definition is inclusive of everything from the mobile phone to digital television and also embracing game consoles and the Internet. The new media combine interpersonal communication and mass media dimensions on one and the same platform, because they induce organizational change and new forms of time management and because they seek the synthesis of the textual and visual rhetoric, thus promoting new audiences and social reconstruction tools. Thus, whereas previously point-to-point communication (one-to-one) and mass communication (e.g. broadcasting one-to-many) were separate, convergence allows the use of the same technology, especially the Internet, but also traditional and mobile television, to say nothing of mobile telephony, for one-to-one, one-to-many, few-tofew and many-to-many communication. One consequence of the emergence of new media in this sense is that all these communication patterns can now be conducted with the use of the new digital and convergent technologies from interpersonal to mass communication, all on one and the same platform. The new media are promoting a fundamental change in patterns of mediated communication, as shown in Figure 2.

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Figure 2. Changing Modes and Patterns of Social Communication Due to New Technologies
Control of information Central Central Control of time and choice of subject ALLOCUTION (push, linear) Individual REGISTRATION

Individual

CONSULTATION (pull, non-linear)

CONVERSATION (semiotic democracy)

Adapted from Bordewijk, van Kaam:

= redistribution of information traffic due to new technologies.

Repressive allocution (one-way, top-down, one-to-many communication), as Enzensberger called it, is losing its dominance in mass communication, with consultation and interactive conversation gaining in importance. The emergence of consultation and conversation as important modes of mediated communication is aided by a new stage in the development of the Internet, known as Web 2.0, based on an implicit architecture of participation, a built-in ethic of cooperation, in which the service acts primarily as an intelligent broker, connecting the edges to each other and harnessing the power of the users themselves. All this, according to Stark, amounts to a revolution based on a simple concept: semiotic democracy, or the ability of users to produce and disseminate new creations and to take part in public cultural discourse. Users are by and large developing and posting their own original creations. Anyone can now with access to the right technology and appropriate communication and information literacy become a creator, a publisher, an author via this new form of cultural discourse, a platform to publish to the world at large that grants near instant publication and access. The publisher-centric business models of the twentieth century will not last, says Stark. We will see massive disintermediation in the next decade or so. More artists, creators, citizen journalists and others will self-publish, and they will find sustainable ways of doing so, perhaps by selling mp3s on their website, finding opportunities for production work, or touring to a greater number of fans. We are thus seeing the emergence of a digital commons, also known under other names, e.g. information commons (Kranich). The emergence of conversation on a societal scale in mediated electronic communication marks a new stage of social communication. The nature of this new

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stage is summed up by Kngs comments on old versus new assumptions about the nature and strategic significance of content. According to old assumptions, content is the product of scarce creative skills and trained discriminating minds. Now, anything can be content and content does not have to be produced by experts. In fact, many users are happiest producing their own content. Moreover, the individualism and antiauthoritarianism which seem characteristic of the present age motivate especially young people to seek sources of information and channels of communication outside traditional media. All this has produced greater engagement by large numbers of individuals in social networking, in forms of public communication via the Internet (blogs, etc.), and generally in public debate, often in the form of user-generated content available via the media. This process of collaborative content creation in different environments, from open source through blogs and Wikipedia to Second Life, amounting to continuous creation and extension of knowledge and art by collaborative communities, has been called produsage. This is why mass media are sometimes described as being transformed into media of the masses. Yet the extent of mass involvement in this phenomenon should not perhaps be exaggerated, at least for now. In a 1993 paper, I coined the phrase the fallacy of the universal need to (mass)communicate for the idealistic assumption that just about everyone would wish to engage in public expression. And indeed, a 2009 Pew Internet study on The Internet and Civic Engagement confirmed a tendency that is already wellknown from efforts to use traditional media for direct communicative democracy, namely that the well-off and well-educated are especially likely to participate in online activities that mirror offline forms of engagement. Those who join the online political discussion on social media sites are highly engaged in other political / civic venues as well, i.e. extend their existing commitment and engagement to the new technologies. Almost one in five American internet users (19 per cent) have posted material about political or social issues or used a social networking site for some form of civic or political engagement. This works out at only 14 per cent of all adults in the USA. Nevertheless, one can most probably expect that in developed societies a large section of the population will in the future be engaged in content creation and distribution via the new technologies, either regularly or occasionally, probably with varying intensity over the course of their lives. CRIS recognizes also another paradox underlying this approach: while freedom of expression, and even more so the concept of communication rights, guarantees that we can speak our thoughts freely (the Norwegian Constitution adds that we are entitled to speak frankly: Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever), it by no means guarantees that others can or will listen. If the concept of a positive right is to be taken seriously, then others should have an obligation to listen, to consider the validity of the ideas expressed, and even to respond. Yet, of course, no-one can be forced to listen, let alone to understand or respond. The paradox, says CRIS, can be resolved by acknowledging

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that communication rights do not seek to impose on everyone an absolute obligation to listen and respond to what others are saying. Rather, they build an environment in which interaction and communication are more likely to occur freely and to mutual benefit. Leaving that aside, the major hurdles to the exercise of the right to public expression are being removed, at least in developed countries. Individuals do not now need the State to give them the tools of public expression. Anyone with the right equipment and the right cultural and communication competence can broadcast their news and views to the entire world. Anyone, from a political party to a sports club, a corporation or a single individual can distribute content worldwide on the Internet, without the mediation of journalists and editors, their editorial judgment and their standards for selecting and presenting information. Of course, this process is not without its critics. Andrew Keen has criticised the enthusiasm surrounding user-generated content, peer production, and other Web 2.0related phenomena. This is reminiscent of what has been called aristocratic criticism of mass culture ONeill appears to continue this pessimistic tradition to some extent, with her insistence on an obligation-based (rather than jurisprudential: we have freedom of expression because some document says so) concept of freedom of expression, on the ethics of communication, quality of speech acts and on the intelligibility and assessability of their content, allowing the audience to judge the truthfulness and reliability of the information obtained, as well as the genre and intention of the author. To this I can only say that while there may indeed be a lot of rubbish on the Internet, any such concern is far outweighed by the great democratic triumph of the almost universal ability, at least in developed societies, to exercise the right to public expression. Sometimes this produces Twitter Revolutions, but what it also means is that with citizen journalism, community, social and other new forms of media, audiences may have access to a lot more public-spirited content than in the past. The revolt of the masses has happened and the masses have won. The floodgates of universal public expression are wide open. This is not to say that every individual will want to take advantage of that fact, or will know how to use the new opportunities well, but the contemporary concept of democracy requires that the right of everyone who wants to engage in public expression to do so should be recognized. What chance is there of this recognition being translated into a formally proclaimed new human right to public expression? We will seek to answer this question below in the context of a more general look at whether the Information Society does or does not necessitate an extension or reformulation of existing human rights standards.

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V. R ETHINKING H UMAN R IGHTS


Jean dArcy, the man generally credited with being the first explicitly to make the case for a right to communicate, wrote in 1969:
The time will come when the Universal Declaration of Human Rights will have to en-compass a more extensive right than mans [sic] right to information, first laid down 21 years ago in Article 19. This is the right of man to communicate. It is the angle from which the future development of communications will have to be considered if it is to be fully understood.

In more general terms, the question whether or not new human rights standards need to be developed for the Information Society has been under consideration for some time. The Committee of Ministers of the Council of Europe does not seem to think so. In 2005, it adopted a Declaration on human rights and the rule of law in the Information Society, reaffirming that all rights enshrined in the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) remain fully valid in the Information Age and should continue to be protected regardless of new technological developments. The Committee also acknowledged that to better respond to the new challenges of protecting human rights in a rapidly evolving Information Society, member states need to review and, where necessary, adjust the application of human rights instruments again making it clear that while there may be change in the way these instruments are applied, this does not extend to the standards they lay down. Is this all there is to say on the subject? I am not sure. Let us consider the impact of information and communication technologies (ICT) and the Information Society in general on human rights. ICTs can have both a quantitative and qualitative impact on the human rights system. As for quantitative impact, they can be seen as magnifying the impact of either human rights protection, or of their violation, since ICTs can facilitate either type of action, i.e. produce multiplier effects by means of their potentially global reach and their instantaneous speed of communication. As concerns qualitative impact, we must consider the possibility that the Information Society and the ICTs are probably capable of changing the social, technological and legal circumstances in which current definitions of human rights were developed. This, in turn, might require a redefinition or re-interpretation of at least some human rights. Moreover, if predictions about the emergence of a web lifestyle are anything like near the mark, what this will mean is that enjoyment of many human rights, as indeed the performance of many everyday activities and pursuits, will increasingly require the use of ICTs. In addition, ICTs can make such a difference and offer so many more possibilities to exercise particular rights (e.g. freedom of expression or the right to education) that they can raise the enjoyment of these rights to a much higher level. This confers a new privilege on the haves (i.e. those with access to, and the capacity

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to use ICTs) and exacerbates the deprivation suffered by the have-nots (limited or no access to, or use of ICTs spells deprivation in the full exercise of human rights). Four main forms of ICT impact on human rights can thus be distinguished:
1.

Quantitative impact: ICTs add a new dimension (multiplier effect as concerns impact or consequences) to existing violations of human rights, or conversely to their exercise or protection. Qualitative impact: ICTs create new forms of delinquency and new forms of crime, or conversely new forms of human rights exercise and protection. Sometimes qualitative impact results in a redefinition of a human right, primarily by adding cyberspace as a new universe for their exercise. ICTs extend and enrich ways in which human rights are exercised so much that one can speak of ICT-enhanced human rights.

2.

3. 4.

When I analysed this question for the Council of Europes Preparatory Group on Human Rights, the Rule of Law and the Information Society (Jakubowicz, 2004), I sought to identify which rights laid down in the European Convention on Human Rights are affected by the ICTs in what way. This is shown in Figure 3: Figure 3. ICT Impact on Human Rights
Form of ICT Impact Articles of ECHR Article 4 Prohibition of slavery and forced labour Article 6 Right to a fair trial Article 8 Right to respect for private and family life Article 14 Prohibition of discrimination Protocol No. 12, Article 1 General prohibition of discrimination Protocol 1, Article 1 Protection of property Article 4 Prohibition of slavery and forced labour Article 7 No punishment without law Protocol 1, Article 1 Protection of property Article 11 Freedom of assembly and association Protocol No. 1, Article 3 Right to free elections Protocol No. 4, Article 2 Freedom of movement Article 10 Freedom of expression Protocol 1, Article 2 Right to education Protocol No. 4 Article 2 Freedom of movement

Quantitative impact (multiplier effect)

Qualitative impact

Redefinition of a human right, primarily by adding cyberspace as a new universe for its exercise; ICT-enhanced human rights

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Today, I would modify this somewhat by placing freedom of expression in two categories: both redefined and ICT-enhanced human rights. As I have tried to show here, the fact that new technologies add the public-sphere dimension to freedom of expression, turning it into freedom of public expression, amounts to fundamental change with far-reaching ramifications for the operation of democracy. This debate on how relevant traditional human rights standards remain in the Information Society is bound to continue. At the very least, these standards may need to translated in ways that would spell out their practical meaning in new technological realities. One such example is provided by the Internet Rights Charter of the Association for Progressive Communication, which seeks to do precisely that. To take an example, Article 27 of the Universal Declaration of Human rights (Everyone has the right to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits) is translated in the Charter into the following rights: the right to share; the right to free and open source software (FOSS); the right to open technological standards; and the right to benefit from convergence and multi-media content. It might therefore appear that a proposal for a new right to public expression could have a chance of being considered. At the present time, however, prospects for this are minimal. Two reasons account for this: one substantive and another political. The substantive reason is that according to some authorities and experts, the existing human rights standards in the field of freedom of expression (as in other fields) have not exhausted their potential. This is clear from the stand taken by the Committee of Ministers of the Council of Europe. This is also the position taken, for example, by ARTICLE 19. Writing on its behalf, Toby Mendel had this to say in 2003 on the proposal for recognition of the right to communicate:
there already exists under international law broad consensus on the basic content of fundamental human rights and I am of the view that the various legitimate claims made for the right to communicate can be accommodated within this framework. I note, in particular, that the right to freedom of expression is recognised to include a positive element, placing an obligation on States to take positive measures to ensure respect for this important right. Interpretation by courts and other authoritative bodies has started to elaborate on the nature of these positive rights and, collectively, this interpretation broadly encompasses the legitimate content of the right to communicate.

ARTICLE 19 considers, in Mendels words, that the right to communicate is to be understood as the right of every individual or community to have its stories and views heard. It states further that the right of equitable access to the media and the means of communication, is central to its realisation. It also encompasses a group of related

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rights including the right to pluralism within the media, the right to practice and express ones culture, the right to participate in public decision-making processes. Other authors, too, note that existing human rights standards and documents already provide a basis for many of the communication rights. Cees Hamelink has provided a very extensive overview of existing international standards which can serve as the human rights infrastructure of the Information Society (Hamelink, 2003). Also the CRIS campaign has provided an extensive list of existing international standards, underlying rights encompassed by the four pillars of communication rights and laid down in what is known as the International Bill of Rights: the Universal Declaration of Human Rights (UDHR, 1948), the International Covenant on Civil and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Cultural and Social Rights (ICESCR, 1966). Let us concentrate here on those that relate to Pillar A, Communicating in the Public Sphere (see Figure 1 above):
1. 2. 3. 4.

Freedom of expression, including the right of the media to operate freely (UDHR 18, 19, 21, ICCPR 19). Access information from public and private sources that pertains to the public interest (UDHR 19, ICCPR 19). A diverse and plural media, in terms of sources, content, views and means of transmission (UDHR 19, ICCPR 19). Universal access to the media necessary to engage with the public sphere, including direct communication and a right to assembly (UDHR 19, ICCPR 19, 21, 22). An effective public sphere also requires rights not directly related to communication, such as the right to literacy and to a basic education (UDHR 26, ICESCR 13).

5.

As has already been said, too little attention is paid here to individual public expression, with the emphasis, I would say unrealistically, still being placed (as in item 4 above) on the role of the media as conduits for individual public expression. Nevertheless, elements of a right to public expression are already well established in the legal, regulatory and institutional frameworks of many countries. Its formal recognition, seen as building in new social and technological circumstances on the right to freedom of expression and the way it has been interpreted and implemented so far, would thus by no means require a major leap into the unknown. Whether or not such a prospect really exists, however, will depend on political considerations. Opening up the International Bill of Rights for possible renegotiation would be a major political step with, unfortunately, unforeseeable consequences. International organizations, such as the Council of Europe, for example, are loath to consider such a move. They fear that in the current international climate, the result could be less freedom and fewer rights, rather than more.

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Without going further afield, let us consider this in the European context. Mikls Haraszti, the Representative on Freedom of the Media of the Organization for Security and Cooperation in Europe has noted a meltdown of commitments to media freedom on the part of some OSCE member states (Vidal-Hall, 2009). The International Federation of Journalists has long warned that the war on terror leads to curtailing freedom of speech and of the media in many democratic states. These processes are unfolding both in young and in established democracies. As for the former, I once noted myself that as new power elites in those countries introduced new (or revived old) forms of control of the media, media independence may have actually fallen behind the general process of democratic consolidation (Jakubowicz, 2007). The situation may actually be deteriorating. Mark Thompson of the Open Society Institute has called this a sort of counter-reformation: Why refrain from exercising political control over [the media] when there are no penalties? (Phillips, 2009). As if this was not bad enough, ARTICLE 19 noted in December 2009 that media freedom was retreating also in the countries of Western Europe:
There have been a number of cases that undermine this right [to freedom of expression], including the emergence of overly restrictive laws, violations of journalists right to protect the confidentiality of their sources, strengthened and applied criminal defamation legislation and the application of counterterrorism laws as a pretext to stifle free speech.

In its statement Western Europe: Freedom of Expression in Retreat in 2009, ARTICLE 19 cites a depressingly long list of violations of international freedom of expression standards by Western European governments and reminds all states in Western Europe of their positive obligation to uphold the right to freedom of expression contained in international and European law. Given this situation, it is not surprising that European organizations prefer to stick to existing texts instead of opening them up for renegotiation. Formal recognition of a right to public expression and its introduction into international documents must await more propitious circumstances, assuming that other governments will agree with the view expressed in the Norwegian Constitution that it is their duty to create conditions that facilitate open and enlightened public discourse.

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VI. T HE R IGHT TO P UBLIC E XPRESSION : W HAT CAN BE DONE ?


A contributor to the right to communicate debate back in the 1970s or 1980s, evidently desperate to find a practical solution to the question of how such a right might be safeguarded, suggested that there should be a radio or television studio every 20 or 30 miles along major roads, so that people could have an opportunity to address the public, should the urge to do so overtake them while traveling. Such extreme measures are no longer necessary. Formal recognition of the right to public expression is not yet possible, largely for extraneous reasons. What remains is the development of active public policy designed to promote and protect it, building on proactive interpretation of existing freedom of expression standards. Mendel suggests we should call this Freedom of Expression 2.0. For example, the ARTICLE 19 document Access to the Airwaves. Principles on Freedom of Expression and Broadcast Regulation says: The State should promote universal and affordable access to the means of communication and reception of broadcasting services, including telephones, the Internet and electricity. By referring to means of communication and reception, the document clearly speaks of both passive and active access, the latter consisting in the ability to practise public expression. We can identify several directions of public policy oriented towards this goal:

Creating structural prerequisites on the media scene for a variety of individual and group communicators to join the public discourse; Ensuring that the media, and especially public service media, are open to public participation in management and content production; Providing universal connectivity and access to the Internet and other ICTs as well as capacity to use them; Encouraging general use of the Internet and other ICTs for self-expression and participation in the public discourse; Reorienting the democratic process and the operation of public authorities to bring closer a user-generated State.

1.

Structural prerequisites

In the section Freedom of Expression and Freedom of the Press: Where is the Right to Public Expression? above, we provided an indication of what effect market forces have on the media and their (in)ability fully to represent the whole of society and provide a channel for all segments of society (let alone all individuals) to join the public discourse. If this is to change, public policy must step in and complement the private media sector and the market forces that shape it, with other forms of media and other mechanisms.

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The Council of Europe Recommendation CM/Rec(2007)2 on media pluralism and diversity of media content tells CoE Member states to ensure that a sufficient variety of media outlets provided by a range of different owners is available to the public. In addition to public and commercial media, the media landscape should, according to the Recommendation, include community, local, minority or social media which have the additional advantage that their content can be created by and for certain groups in society and can provide a response to their specific needs or demands. First order of business is to ensure the continued existence, viability and relevance of public service media The Council of Europes Recommendation Rec(2007)3 on the remit of public service media in the information society expresses the view of its Member states that
the public service remit is all the more relevant in the information society and that it can be discharged by public service organisations via diverse platforms and an offer of various services, resulting in the emergence of public service media, which, for the purpose of this recommendation, does not include print media;

Barbara Thomass, a German media scholar, has correctly noted that if public service media are still to be around in the 2020s to celebrate their centenary, they must renew themselves in the meantime. The Council of Europe Recommendation outlines how this must be done to ensure a future for public service media (deliberately so called, to escape exclusive association with broadcasting as the only platform for public service 4 content). Second order of business is to ensure a secure place in the media world for community media. Their reach and audience may be small, but after a long march, they have 5 won formal recognition in dozens of countries worldwide. In Europe, the European Parliament advised EU Member States in 2008 to give legal recognition to community media as a distinct group alongside commercial and public media where such recognition is still lacking. Also in 2008, a Declaration of the Committee of Ministers of the Council of Europe on the role of community media in promoting social cohesion and inter-cultural dialogue underlined the need of the full legal recognition of community media as a distinct media sector, alongside public service and private commercial media. Thus, as I told the AMARC Europe conference in 2008, community media have become flavour of the decade worldwide. Why are they so important, all of a sudden? First, they introduce voices into public discourse which would never be heard otherwise. They are an example of participatory
4

See also the European Broadcasting Unions publication, Public Service Media in the Digital World, offering an extensive comment on the contents of this Recommendation. See the May 2010 issue of Telematics and Informatics, devoted wholly to community media.

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media, ideally serving as an emanation of some segment of civil society and focused on issues of importance to it. In fact, they represent what might be called representative participatory communicative democracy. This may sound like a contradiction in terms, but in fact in democratically structured community stations, all or most of their members are:

communication facilitators (as they are involved in the running and operation of those media, contributing time, effort and money to ensure their functioning and survival); media co-managers, able to influence the operation of their media and participate in the determination of their goals; and direct or indirect communicators, as the groups views, ideas, culture and world outlook, formulated in a participatory manner, are represented on the air.

Thus, even if on a small scale in each case, these media are a means of exercising the individual and group right to public expression. If enough community stations and other media operate in a society, the public debate is significantly enriched. This is why the Principles on Democratic Regulation of Community Broadcasting, formulated by the World Association of Community Radio Broadcasters, state that all organized communities and non-profit entities, whether they are geographic or ethnolinguistic communities or communities of interest, in rural or urban areas, have the right to establish and operate community radio or television stations. National spectrum management plans should accordingly include, in all broadcasting bands, an equitable amount of frequencies reserved for access by community media and other noncommercial media, as a means of guaranteeing their existence. This principle applies also to allocations of new digital broadcasting frequencies. This may not always be a realistic proposition, but the opposite course of action (creating no room for community media in digital terrestrial radio and television) is unacceptable. There has so far been less scope for public policy action in the print media, but all instruments available should be used to ensure pluralism and diversity of content, as well as openness to individual public expression, in that sector. Moreover, with the printed press hit hard by the economic crisis and migration of readers and advertising revenue to the Internet, there are more and more calls and indeed practical measures to shore up the press with public funds and assistance. In their report The Reconstruction of American Journalism, Leonard Downie, Jr. and Michael Schudson propose ways to support news reporting, especially at the local level. They see an indispensable role for philanthropy (foundations) and government, inter alia by supporting the emergence of some forms of public service news-gathering organizations and print media. (They propose that The Internal Revenue Service or Congress should explicitly authorize any independent news organization substantially devoted to reporting on public affairs to be created as or converted into a nonprofit entity or a low-profit Limited Liability Corporation serving the public interest, regardless of its

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mix of financial support, including commercial sponsorship and advertising. The IRS or Congress also should explicitly authorize program-related investments by philanthropic foundations in these hybrid news organizations and in designated public service news reporting by for-profit news organizations.) Ideas for similar measures are also being advanced by other American authors (Nichols and McChesney, speak of the patriotic case for government action to save American journalism) and in other countries. These ideas could provide public policy tools for promoting the further opening up of private media to individual and group public expression. And they show that the Council of Europe was being too cautious in its Recommendation Rec(2007)3 on the remit of public service media in the information society to suggest that the term public service media does not extend to print media.

2.

Public participation in content production and management in PSB and other media

With some exceptions, public service broadcasting (PSB) has so far largely failed to respond, in its organization, management structures and relations with civil society, to the rise of networked, non-hierarchical forms of multi-stakeholder governance and social relations. No one who has experienced and grown used to the interactive and participatory Internet culture will be prepared to accept the traditional governance arrangements of public service media. They will expect a relationship of direct accountability, partnership and participation not something many public service media are prepared to enter into, even at the price of becoming increasingly irrelevant and out of touch. Simple forms of feedback and participation (phone-in programmes, SMS and Internet voting) are, of course common. In their policy documents, some PSB institutions emphasize audience participation as a strategic response to the challenges in the digital age. This is meant to provide a new source of legitimacy by replacing passive viewing with active participation. PSB must redefine its place in society, seeking and enabling genuine participation by, and partnership with, civil society. The Council of Europes Recommendation Rec(2007)3 on the remit of public service media in the information society returns repeatedly to this issue and says in part: In view of changing user habits, public service media should address all generations, but especially involve the younger generation in active forms of communication, encouraging the provision of user-generated content and establishing other participatory schemes. Participatory programming can also mean public scrutiny of editorial policy and a broadcaster-audience dialogue about this. The general purpose is re-embedding PSB in society, in the area of programming, management, and policy-making. Greater reliance on user-generated content and collaboration with citizen journalists, without sacrificing quality and objectivity, would be one way of approaching this. All this assumes, of course, that public service broadcasting/media will survive (or will be reconstituted in post-Communist and developing countries, where they are still an extension of the political elite see

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Jakubowicz, forthcoming a), and will undergo a Copernican revolution allowing them to be reinvented for the 21st century (see Jakubowicz, forthcoming b). This is why Council of Europe Recommendation CM/Rec(2007)2 on media pluralism and diversity of media content calls on Member states to:
encourage public service media to play an active role in promoting social cohesion and integrating all communities, social groups and generations, including minority groups, young people, the elderly, underprivileged and disadvantaged social categories, disabled persons, etc., while respecting their different identities and needs. In this context, attention should be paid to the content created by and for such groups, and to their access to, and presence and portrayal in, public service media. Due attention should also be paid to gender equality issues.

The new technologies and new modes of governance developed in recent years offer means of implementing most if not all of the methods for democratizing public service media (PSM) organizations (from the simplest, such as feedback, to the most thorough-going, such as participation in the formulation of communication policies) that were proposed in the 1960s and 1970s: Feedback: Email correspondence with programme makers and executives; instantaneous reaction in blogs and on websites; Access: Online communities and social networking sites built around programmes and series; Access to air time, participation in programme development: User-generated content (a website established by Channel 4 (UK) allows users to generate, upload and view four-minute documentaries); Participation in the organization and management of PSB/PSM: Multi-stakeholder approach with NGO and civil society participation, online communication. (BBC News editors maintain a blog, The Editors, because The BBC wants to be open and accountable this site is a public space where you can engage with us as much as the medium allows. Were happy for you to criticise the BBC and to ask serious, probing questions of us well do our best to respond to them.) Participation in the formulation of communication policies: multi-stakeholder approach with NGO and civil society participation, online communication. (The British regulatory authority Ofcom has established the Ofcom PSM Review blog as part of its review of public service broadcasting for people to debate the issues in the review.) The U.S. Federal Communications Commission has joined popular networking sites such as Twitter, YouTube and Facebook, launched a website and a blog to encourage popular participation in a drawing up the national broadband plan: people can vote on which topics are the most important and suggest their own.

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The Council of Europe has launched a new project on PSB governance, precisely with a view to promoting greater openness of PSB organizations to public participation. Public policy has fewer instruments to promote such tendencies in private media. However, as the business model of traditional newspapers and television news operations collapses, some changes are occurring spontaneously. In their report, Downie, Jr. and Schudson note:
Reporting is becoming more participatory and collaborative. The ranks of news gatherers now include not only newsroom staffers, but freelancers, university faculty members, students, and citizens We have seen struggling newspapers embrace digital change and start to collaborate with other papers, nonprofit news organizations, universities, bloggers, and their own readers. We have seen energetic local reporting startups, where enthusiasm about new forms of journalism is contagious We have seen pioneering public radio news operations that could be emulated by the rest of public media. We have seen forward-leaning journalism schools where faculty and student journalists report news themselves and invent new ways to do it. We have seen bloggers become influential journalists, and Internet innovators develop ways to harvest public information and we have seen citizens help to report the news and support new nonprofit news ventures. We have seen into a future of more diverse news organizations and more diverse support for their reporting.

3.

Universal connectivity and access to the Internet and other ICTs as well as capacity to use them; Encouraging general use of the Internet and other ICTs for self-expression and participation in public discourse

The outcome documents of the World Summit on the Information Society (WSIS) recognise the right of everyone to benefit from the information society. The Internet Governance Forum that emerged out of the WSIS has made access to the Internet and ICTs a major focus of its debates. The European Parliament in its recommendation of 26 March 2009 to the Council on strengthening security and fundamental freedoms on the Internet called for full and safe access to the Internet for all. Wherever Information Society policy is adopted and pursued, and this is the case in a great majority of countries, its objectives include the following:

to democratize access: to place within the reach of all persons, the means to access and use information and information and communication technologies, guaranteeing the enjoyment of citizen rights, fostering education, local development, eradication of poverty, gender equity, digital inclusion, universal access, public transparency and efficiency, and participatory governance; and

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to develop capacities: to create, support and promote strategies, tools and methodologies to generate capacities and skills to utilize information and information and communication technologies for all sectors and societal groups, at all levels of formal and informal education, also disseminating the possibilities provided by different information management models. In particular, to build capacity for research and technological innovation, oriented toward generating ones own knowledge; and to generate national contents on the part of public institutions and local contents on the part of different social groups.

In the United States, the Internet is seen as a special type of good called a quasi-public good like the electric power industry, the highway system, the education system, and the health care system. These goods can be provided to a limited extent through the private market, but a functioning modern society requires that they be more widely available than the private sector can provide. Hence the need for public subsidies. In 1998, the Clinton administration launched what is known as the E-Rate program, providing up to US$2.25 billion per year of subsidies to school and library investment in Internet and communications technology. According to ITU data, at least 39 countries have set up subsidy schemes known under the general name of Universal Access and Service Funds, imposing levies on operators to obtain funds to subsidize telephony and internet services and supporting ICT projects. The Council of Europes Recommendation No. R(99)14 on universal community service concerning new communication and information services calls for measures to enable individuals to take advantage of the Internet and other new services. This is reflected also in other CoE documents, including particularly Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet that calls on Member States to develop strategies which promote affordable access to ICT infrastructure, including the Internet; technical interoperability, open standards and cultural diversity in ICT policy covering telecommunications, broadcasting and the Internet; promote a diversity of software models, including proprietary, free and open source software; and promote affordable access to the Internet for individuals, irrespective of their age, gender, ethnic or social origin, including those on low incomes; those in rural and geographically remote areas; and those with special needs (for example, disabled persons). And indeed, there is a growing tendency to recognize universal access to the Internet and other digital media, including especially broadband networks, as an elementary human right. The French Constitutional Council has ruled in originally striking down Loi Hadopi, the controversial three strikes anti-piracy law that internet access is now a fundamental human right as an essential tool for the liberty of communication and expression. Finland has made 1-megabit broadband Web access a legal right. Finland has committed to making a 100Mb broadband connection a legal right by the end of 2015 and this measure is considered an intermediate step. Finland says that it is the first country to make broadband Internet access a legal right.

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Spain has added the Internet to universal service provision, so that Spanish citizens will have a legal right from 2011 to be able to buy broadband internet of at least one megabyte per second at a regulated price wherever they live. The EU reform of the 2002 telecoms package has included the addition of Article 1(3)a to the Framework Directive that in the words of a European Commission press release (MEMO/09/219) amounts to recognition of the right to internet access: The new telecoms rules recognise explicitly that internet access is part of fundamental rights such as the freedom of expression and the freedom to access information. UK Green MEP Caroline Lucas has commented that The message from this EU legislation is clear: access to the internet is a fundamental right and proper procedures must be followed when challenging internet users on alleged copyright infringement. It is now up to national governments to respect this. Thus, all EU states may be expected to recognize the right of access to the Internet. In addition to passive access (ability to receive information), we are obviously concerned here with active access the ability to create and distribute content, among other things for the purpose of joining the democratic debate. Recognition of the importance of active access is clear from the European Parliaments Recommendation of 26 March 2009 to the Council on strengthening security and fundamental freedoms on the Internet (2008/2160(INI)), which states, inter alia, that
the evolution of the Internet proves that it is becoming an indispensable tool for promoting democratic initiatives, a new arena for political debate (for instance e-campaigning and e-voting), a key instrument at world level for exercising freedom of expression (for instance blogging) and for developing business activities, and a mechanism for promoting digital literacy and the dissemination of knowledge (e-learning);

In recognition of this potential of the Internet, the US nationwide plan for expanding high-speed Internet access is actually tied to expanding e-government. The US$787 billion American Recovery and Reinvestment Act set a February 2010 deadline to create a plan that would provide high-speed Internet access to all Americans. By law, the plan must include using broadband to increase civic participation in policymaking, also known as e-government. It is a cornerstone of the Obama administration's transparency agenda to increase public participation in government through the Web. Also the Council of Europe Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet says in part: Member states should encourage the use of ICTs (including online forums, weblogs, political chats, instant messaging and other forms of citizen-to-citizen communication) by citizens, non-governmental organisations and political parties to engage in democratic deliberations, e-activism and e-campaigning, put forward their concerns, ideas and initiatives, promote dialogue and deliberation with representatives and government, and to scrutinise officials and politicians in matters of public interest.

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Both passive and especially active access require what is variously called media and information literacy or education. There is growing recognition of the need to promote it, as evidenced by the work of UNESCO on the global scale, or the European Union and the Council of Europe. A European Commission 2007 communication, A European approach to media literacy in the digital environment, highlights the importance of media literacy and calls on Member States to promote it. Significantly, its definition of media literacy encompasses not only skills and attitudes for passive access, but also for active access and use of the media and ICTs:

actively using media, through, inter alia, interactive television, use of Internet search engines or participation in virtual communities, and better exploiting the potential of media for entertainment, access to culture, intercultural dialogue, learning and daily-life applications (for instance, through libraries, podcasts); using media creatively, as the evolution of media technologies and the increasing presence of the Internet as a distribution channel allow an ever growing number of Europeans to create and disseminate images, information and content; being aware of copyright issues which are essential for a culture of legality, especially for the younger generation in its double capacity of consumers and producers of content.

The Council of Europes Recommendation CM/Rec(2007)16 on measures to promote the public service value of the Internet also calls for promoting media and information literacy and training in formal and non-formal education sectors for children and adults in order, inter alia to: (a) empower them to use media technologies effectively to create, access, store, retrieve and share content to meet their individual and community needs and interests; (b) encourage them to exercise their democratic rights and civic responsibilities effectively. Let us also mention the European Charter for Media Literacy, promoted by various actors in the media field. It says in part that media literate people should be able to: use media technologies effectively to access, store, retrieve and share content to meet their individual and community needs and interests; use media creatively to express and communicate ideas, information and opinions; and make effective use of media in the exercise of their democratic rights and civic responsibilities. They also pledge to develop creative skills in using media for expression and communication, and participation in public debate. Accordingly, media literacy and education directly serve the goal of promoting public expression by giving individuals and groups the cultural and communication competence to do so.

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4.

Reorienting the democratic process and the operation of the public authorities to bring closer a user-generated State

The Council of Europe has long considered what the institutions of democracy can do to reinvigorate the democratic process in Europe. Debates at the CoEs 2004 conference on The Future of Democracy in Europe identified three priorities:

Electoral processes: enhancing turnout and inclusion Parties: promoting fairer funding and internal democracy Citizen involvement: supporting civic education and direct democracy.

If democracy is to flourish, the State and its administration should be prepared to listen and to create mechanisms (in addition to general elections once every few years) by which the general public could influence public policy and the democratic process. This is likely to be the most challenging element of the whole process. At the Council of Europes 2008 Forum for the Future of Democracy, Valerie Frissen spoke of the new digital divide: government 1.0 vs. society 2.0. She noted that innovation in the public sector was slow and problematic, showing a striking discrepancy compared to high deployment and innovative use of ICT in/by society. Probably this is not just a matter of take-up of new technologies: rather of a general orientation on the part of public authorities and their readiness truly to adopt a multistakeholder approach and move from traditional government to a more democratic process of governance, direct public accountability and elements of direct democracy. At the same Forum, Steven Clift, a long-time advocate of e-democracy, said: representative democracy is not adapting. We have early adapters here and experimenters there, but this is a 5 per cent crowd. The focus of our reflections should be on how to involve and include the other 95 per cent. E-democracy, or digital democracy, is not about replacing representative with direct, ICT-mediated democracy: rather, it is about the emergence of a hybrid form of directrepresentative democracy facilitating public debate, the birth of new political movements, and citizen involvement in the work of institutions of democracy. What we are talking about is enhanced representative democracy, enriched with stronger citizen oversight of the deliberation and decision-reaching process and engagement in it. E-democracy has been described as a quiet revolution, which will transform the nature of representative democracy by facilitating more direct and numerous links between representatives and individual voters. It may also transform the relationship between e-democracy and e-government, breaking down the barriers between them. In the digital age, the current hierarchical, institution-based, static distribution of power which is granted to politicians and bureaucracies in exchange for the sporadic electoral sanction of the ballot box takes on the character of networks: more constant, fluid, self-regulating forms of information exchange. The citizen is now intrinsically part of all aspects of the process. That is why

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officials will come under greater direct pressure to be accountable to citizens who become used to asserting claims directly themselves, rather than just relying upon their representatives to forward their cases and complaints. And that is precisely why we need recognition of the right to public expression in the user-generated State or State 2.0, as Charlie Beckett has called it. Despite all the difficulties, here, too, we are seeing processes of change unfold, with different forms of e-democracy being developed, to mention only the 2008 presidential election campaign in the US. The EU is promoting e-participation as a way of fighting the perceived democratic deficit, which requires a new relationship between politicians and citizens, and is particularly challenging at EU level. The goal is to reconnect citizens with politics and policy-making. Valerie Frissen cited a number of examples of citizens moving up the public value chain, i.e. becoming more involved in the formulation, implementation and oversight of policy. In the law enforcement field, citizens participate by being informed, consulted, by sharing responsibilities with government and by taking over the enforcement role. Among other forms of ICT-assisted participation, she lists mobilization, such as happened during Obamas election campaign; transparency of political representatives (making public information accessible; enhancing public information: rating services); direct citizen influence on decision making through collaborative activism; benefiting from the wisdom of crowds; crowdsourcing (the citizen as detective, assisting the police); the new civil servant (who maintains a blog and is open to dialogue); citizen self-organisation of public services, and so forth. While social websites have a growing impact on government and the public sector, awareness in the public sector is, Frissen said, extremely low; over time, this may result in a loss of trust in government and the marginalisation of key government and democratic functions. Nevertheless, there are signs of change. Some time ago, New Zealand police launched a wiki to invite the public to suggest the wording of a new piece of legislation, the Police Act, potentially producing a user-generated Police Act. In January 2009, Ross OMullane, announcing his intention to run for the Irish parliament from his South Dublin constituency, launched a website through which he hoped to make politics more productive, legitimate and creative by encouraging greater public participation in the democratic process: When elected, he promised, I will strictly follow the opinion of the users of this website. This will create an almost direct democracy with a deflated middle man where you will have a much louder voice on key issues. This new system will make politics more transparent, accountable and creative things we need with the massive challenges facing our neighbourhoods, our nation and our planet. Even the Prime Minister of Kazakhstan, a country that is not exactly a paragon of democracy, told his ministers to start personal blogs to get them closer to the people and enable people to ask you questions that you must answer. Masimov started his own blog with an introductory post that received many comments, some of which were

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complaints about the quality of tap water in villages. He has since ordered the cabinet to investigate the criticisms. While this may have been more of a public relations gimmick than anything else, the principle is spreading. In April 2009, The Financial Times asked readers to contribute to future leader columns. Readers will be able to help shape the paper's editorial line through its Arena blog, joining staff writers in online debates about topics for upcoming leader columns. Robert Shrimsley, FT.com managing editor, said: I've long wanted to share the quality of the debates we have inside the building with our readers. This way we get to go one step further and invite them to participate. In recognition of this principle, the European Parliament, in its Recommendation of 26 March 2009 on strengthening security and fundamental freedoms on the Internet, called on EU institutions to:

participate in efforts to make the Internet an important tool for the empowerment of users, an environment which allows the evolution of bottom up approaches and of e-democracy; recognise that the Internet can be an extraordinary opportunity to enhance active citizenship and that, in this respect, access to networks and contents is one of the key elements; recommend that this issue be further developed on the basis of the assumption that everyone has a right to participate in the information society and that institutions and stakeholders at all levels have a general responsibility to assist in this development, thus attacking the twin new challenges of e-illiteracy and democratic exclusion in the electronic age; urge Member States to respond to a growing information-aware society and to find ways of providing greater transparency in decision-making through increased access by their citizens to information stored by governments in order to allow citizens to take advantage of that information; apply the same principle to its own information; stress the importance of developing a real Web E-agora where EU citizens can have a more interactive discussion with policy makers and other institutional stakeholders.

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VII. C ONCLUSION
Formal recognition of a new human right is a momentous step. Without pretending to engage in any in-depth analysis of the process of proclaiming human rights, we may perhaps suggest that this can theoretically occur in a number of situations: In a context of oppression and persecution, when proclamation of a particular human right (or perhaps of the need for it) becomes a rallying cry for individuals and groups determined to wage a (revolutionary) struggle for change; 2. When enough politicians, thinkers and legal experts agree that it would be a useful and necessary addition to existing human rights standards; 3. When practical exercise of this right is so widespread and prevalent that the right itself is taken for granted and its formal recognition is the logical next step. The first two cases could be called instances of ex ante proclamation of a human right. In the first case, this happens in the teeth of opposition from the powers-that-be; in the second, in advance, as it were, of general acceptance and support for such a move. The third case could, by contrast, be regarded as ex post formal introduction of a human right, already well recognized, broadly supported and often strongly embedded in social practice in many cases after a long and by no means easy struggle for its acceptance.
1.

Formal recognition of the right to public expression today would probably represent the second method, perhaps the least frequent and successful of all. So, if the right is ever added to human rights standards, as I think it should be, then we will have to wait for (1) widespread practical use of the means of public expression by a large enough segment of the general public (as shown by the process of recognition of the right of passive and active access to the Internet), so that even political stumbling blocks to the acceptance of the right will become irrelevant; and (2) more general recognition of the difference between mere freedom of expression and a much expanded right to public expression. Both these processes are developing momentum, so prospects for ultimate success look promising. Cory Doctorow, the Canadian blogger and writer, wrote very recently:
Heres a prediction: in five years, a UN convention will enshrine network access as a human right (pre-emptive strike against naysayers: Human rights arent only water, food and shelter, they include such nonessentials as free speech, education, and privacy). In ten years, we wont understand how anyone thought it wasnt a human right.

We have seen that this is already happening. The right to public expression could well be next in line to be formally recognized and officially proclaimed.

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B IBLIOGRAPHY
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Aaron Smith. Kay Lehman Schlozman, Sidney Verba and Henry Brady, The Internet and Civic Engagement (Washington, D. C.: Pew Internet & American Life Project, 2009). Available at http://www.pewinternet.org/Reports/2009/15--The-Internet-and-Civic-Engagement.aspx Elizabeth Stark, Free culture and the Internet: a new semiotic democracy, openDemocracy, 19 June 2006, Available at http://www.opendemocracy.net/arts-commons/semiotic_3662.jsp# Barbara Thomass, Intensify the Dialogue Public Service Broadcasting (PSB) and its Audiences. Paper presented at the IAMCR Conference, Paris, 2007. Judith Vidal-Hall, A shifting media landscape. An interview with Mikls Haraszti, Eurozine, Available at http://www.eurozine.com/articles/2009-03-20-haraszti-en.html Raymond Williams, Communications (Harmondsworth: Penguin Books, 1968) World Association of Community Radio Broadcasters, Principles on Democratic Regulation of Community Broadcasting, Available at http://lists.amarc.org/pipermail/amarc-europemembers/attachments/20080720/21583a1d/attachment-0001.pdf World Summit on the Information Society (WSIS), documents available at http://www.itu.int/wsis/index.html

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