Mass Media Law and Ethics_MCM610 VU

Lecture # 21
Universal Media Laws: An Introduction
Introduction
Freedom of expression is a cornerstone of democratic rights and freedoms. In its very first
session in 1946, before any human rights declarations or treaties had been adopted, the UN
General Assembly adopted resolution 59 (I) stating "Freedom of information is a fundamental
human right and ... the touchstone of all the freedoms to which the United Nations is
consecrated."
Freedom of expression is essential in enabling democracy to work and public participation in
decision-making. Citizens cannot exercise their right to vote effectively or take part in public
decision-making if they do not have free access to information and ideas and are not able to
express their views freely. Freedom of expression is thus not only important for individual
dignity but also to participation, accountability and democracy. Violations of freedom of
expression often go hand in hand with other violations, in particular the right to freedom of
association and assembly.
Progress has been made in recent years in terms of securing respect for the right to freedom of
expression. Efforts have been made to implement this right through specially constructed
regional mechanisms. New opportunities are emerging for greater freedom of expression with
the internet and worldwide satellite broadcasting. New threats are emerging too, for example
with global media monopolies and pressures on independent media outlets.
Rights at Stake
(a) The right to freedom of expression and opinions
The right to freedom of expression upholds the rights of all to express their views and opinions
freely. It is essentially a right which should be promoted to the maximum extent possible given
its critical role in democracy and public participation in political life. There may be certain
extreme forms of expression which need to be curtailed for the protection of other human rights.
Limiting freedom of expression in such situations is always a fine balancing act. One particular
form of expression which is banned in some countries is “hate speech”.
There may be some views which incite intolerance or hatred between groups. This raises the
debate about whether such hate speech, as it is known, should be restricted. An extreme example
of this is the use of the mass media to promote genocide or racially-motivated attacks, such as
the role played by Radio-Télévision Libre des Milles Collines in the Rwandan genocide in 1994.
In some countries hate speech laws have been introduced to outlaw such expression. There is a
fine balance between upholding the right to freedom of expression and protecting other human
rights. The success of such laws has often been questionable and one of the consequences has
been to drive hate speech underground. While it may be necessary to ban certain extreme forms
of hate speech and certainly to make its use by the state prohibited, parallel measures involving
the promotion of a pluralistic media are essential to give voice to counter viewpoints.
(b) The right to seek receives and imparts information and ideas

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Restrictions on individual journalists: The freedom to impart information can come under
attack in a variety of ways and particularly impinge on the freedom of the press. Pressure on
journalists poses a very significant threat.
Informal censorship refers to a variety of activities by public officials - ranging from telephone
calls and threats to physical attacks - designed to prevent or punish the publication of critical
material. The right of journalists to protect their sources is also important in ensuring the free
flow of information on matters of public interest. International and regional human rights
mechanisms have asserted that journalists should never be required to reveal their sources except
under certain conditions (it is necessary for a criminal investigation or the defense of a person
accused of a criminal offence; they are ordered to do so by a court, after a full opportunity to
present their case; necessary’ implies that the information cannot be obtained elsewhere, that it is
of great importance and that the public interest in disclosure significantly outweighs the harm to
freedom of expression from disclosure).
Privacy laws can impede investigative reporting aimed at exposing corrupt and illegal practices.
Privacy laws, while important in protecting the private affairs of individuals, should not be
misused to deny discussion of matters of public concern.
The media should be free to report on conflicts and public scrutiny in such situations is essential
to controlling humanitarian and human rights abuses. Exclusion of the media is a very severe
restriction on freedom of expression and information in this regard and restrictions should only
be placed where there are clear safety concerns. Elections are other times when the freedom of
the press to provide balanced and impartial information becomes critical and more vulnerable to
repression by political actors.
Structural restrictions on the press: These call into question whether the media are free from
political control at an institutional level. Restrictions can take the form of press laws which allow
for government interference in the media, or which impose unwarranted restrictions on published
content. All bodies with regulatory authority over the media, print or broadcast, should be fully
independent of government. Processing of license applications should be open and transparent,
with decisions about competing applications being made on the basis of pre-established criteria
in the interest of the public’s right to know. In addition, the powers of broadcast regulatory
bodies should be limited to matters relating to licensing and complaints.
Media monopolies are another way in which the right to receive information from a variety of
sources is restricted. State broadcasting monopolies do not serve the public interest but then in
some smaller markets, a monopoly newspaper may be the only way to provide access to local
news. Rules on monopolies need to be carefully designed to promote plurality of content,
without providing the government with an opportunity to interfere in the media.
Other examples of “structural censorship” i.e. use of economic measures by governments to
control information, include preferential allocation of government advertising, government
control over printing, distribution networks, or newsprint and the selective use of taxes.
Access to information held by public authorities is another aspect of the freedom of
information debate. International/regional human rights mechanisms have asserted the public’s
right to know and urged governments’ to adopt legislation along the following lines: the
legislation should be guided by the principle of maximum disclosure; public bodies should be

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under an obligation to publish key information; public bodies should actively promote open
government; exceptions should be clearly and narrowly drawn and subject to strict ‘harm’ and
‘public interest’ tests; individuals should have the right to appeal against a refusal to disclose
information to an independent administrative body, which operates in a fair, timely and low-cost
manner; the legislation should provide protection for ‘whistleblowers’ who release information
on wrongdoing.
New technologies, such as the Internet, and satellite and digital broadcasting, offer
unprecedented opportunities to promote freedom of expression and information. Action by the
authorities to limit the spread of harmful or illegal content through the use of these technologies
should be carefully designed to ensure that any measures taken do not inhibit the enormous
positive potential of these technologies. The application of rules designed for other media, such
as the print or broadcast sectors, may not be appropriate for the internet. Obviously, limitations
on such technologies will be a fine balancing act between defending the freedom of expression
and information and ensuring protection from abuses e.g. spread of child pornography.
(c) These rights can only be restricted in certain circumstances: to protect the rights and
reputations of others or to protect national security, public order, public health or morals.
Restrictions in the name of public order and national security can often be excessively
broad and vague. International and regional bodies have said that such restrictions should only
be imposed where there is a real risk of harm to a legitimate interest meaning there is a
significant risk of imminent harm; the risk is of serious harm, that is to say violence or other
unlawful action; there is a close causal link between the risk of harm and the expression; the
expression was made with the intention of causing the harm.
Criminal sanctions accompany such restrictions. Often the expression in question may not pose
a clear risk of serious harm to public interest and still it is subjected to penal sanctions, including
imprisonment. International/regional human rights mechanisms on freedom of expression have
concluded that imprisonment should not be imposed except in the very most extreme
circumstances where there is intentional incitement to imminent and serious lawless action.
Criminal defamation laws still exist in some states to protect public figures from injury to their
reputations. Such laws have a limiting effect on freedom of expression and are frequently abused
in cases where there is no public interest at stake. International and regional human rights
institutions have recommended that such laws should be abolished and replaced with civil
defamation laws.
Civil defamation laws can also be misused to censor criticism and debate concerning public
issues. International/regional human rights bodies have said that civil defamation laws should
observe the following principles: public bodies should not be able to bring defamation actions;
truth should always be available as a defense; politicians and public officials should have to
tolerate a greater degree of criticism; publications regarding matters of public interest which are
reasonable in all the circumstances should not be considered defamatory; damage awards should
be proportionate to the actual harm caused and should take into account alternative remedies
such as apologies and corrections.
Courtroom restrictions: There are various laws falling under the contempt of court rubric
which restrict the flow of information in order to protect the administration of justice. Some

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restrictions exist to ensure a fair trial and to avoid a “trial by the media.” Other restrictions are
more to do with protecting the court from being “scandalised”. There are increasing questions
about whether freedom to criticise the judiciary should be limited in this way. Having cameras in
the courtroom has become a lively area of debate in recent years. Again, as with many other
questions to do with the freedom of expression, there is a fine balance to be struck between the
desirability of opening up the judicial system on the one hand and protecting the privacy of
victims and their families on the other.
International and Regional Instruments for Protection and Promotion
British Magna Carta (1215)
Article 11 of the French Declaration of the Rights of Man and Citizen, The French Revolution,
1789: Freedom of Expression is one of the most precious rights of man.
Every individual has freedom to form his or her own opinions free from external indoctrination
and to defend them in the “free market of ideas” without fear of repression.
Freedom of expression is an essential component of the individual’s privacy, requiring absolute
protection against external interference
International legal instruments take the form of a treaty (also called agreement, convention, or
protocol) that binds the contracting states to the negotiated terms. When negotiations are
completed, the text of a treaty is established as authentic and definitive and is "signed" by the
representatives of states. A state can agree to be bound to a treaty in various ways. The most
common are ratification or accession. A new treaty is ratified by those states that have negotiated
the instrument. A state that has not participated in the negotiations may, at a later stage, accede to
the treaty. The treaty enters into force, or becomes valid, when a pre-determined number of states
have ratified or acceded to the treaty.
When a state ratifies or accedes to a treaty, that state may make reservations to one or more
articles of the treaty, unless reservations are prohibited by the treaty. Reservations may normally
be withdrawn at any time. In some countries, international treaties take precedence over national
law; in others a specific law may be required to give a ratified international treaty the force of a
national law. Practically all states that have ratified or acceded to an international treaty must
issue decrees, change existing laws, or introduce new legislation in order for the treaty to be fully
effective on the national territory.
The following international instruments determine standards for the protection of the right to
freedom of expression:
UNITED NATIONS
Universal Declaration of Human Rights (1948) (article 19)
The Universal Declaration of Human Rights (UDHR) was adopted by the General Assembly of
the United Nations on 10 December 1948 and provides human rights standards accepted by all
member states. The UDHR represents the normative basis that led to formulating the standards
for freedom expression. Article 19 states that “Everyone has the right to the 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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International Covenant on Civil and Political Rights (1966) (article 19)
The International Covenant on Civil and Political Rights, also known by its abbreviation ICCPR,
entered into force in 1976. It elaborates the principles laid out in UDHR and is legally binding on
all states who have signed and ratified its provisions. Article 19 of the ICCPR stipulates that:
"(1) everyone shall have the right to hold opinions without interference.
(2) Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his choice. (3) The
exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as
are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b)
For the protection of national security or of public order (ordre public), or of public health or
morals."
UN Special Rapporteur on Freedom of Opinion and Expression
The office of the UN Special Rapporteur on Freedom of Opinion and Expression was established
by resolution of the UN Commission on Human Rights in 1993. The mandate of the Special
Rapporteur requires that information be gathered from governments, NGOs and others on the
discrimination, violence or harassment of persons, including professionals, in the exercise of
their right of freedom of opinion and expression. The Rapporteur submits an annual general
report plus country reports on site visits, and makes recommendations on the better promotion
and implementation of these rights. The Special Rapporteur focuses on both broad thematic
issues as well as individual cases in which he intervenes through urgent actions and
communications. The rapporteur is able to visit countries for on-site assessment at the invitation
of the government in question.
The guarantees of freedom of expression in the Universal Declaration and ICCPR are very
general and the Special Rapporteur has sought to clarify the precise nature of this right, by
making a number of statements and declarations, often in conjunction with other human rights
mechanisms, containing authoritative interpretations of these articles.
Johannesburg Principles on National Security, Freedom of Expression and Access to
Information (1996)
These principles were adopted by a group of experts in international law and endorsed by the UN
Special Rapporteur in his annual report of 1996.
Article 19, an NGO campaigning for the right to freedom of expression, has been instrumental in
coordinating the activities of international and regional mechanisms. It has convened meetings to
bring together the UN Special Rapporteur, the OAS Special Rapporteur on Freedom of
Expression and the OSCE Representative on Freedom of the Media. These three institutions have
made a number of joint declarations on the issue of freedom of expression.
Convention on the International Right of Correction (1952)
This treaty offers a mechanism whereby states can clarify differences or problems arising from
incorrect or misleading news dispatches.

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A number of UN treaties concerned with the rights of specific groups expressly or implicitly
protect their rights to freedom of expression. Such concerns have therefore been raised with the
bodies overseeing the implementation of these treaties:
International Convention on the Elimination of All Forms of Racial Discrimination (1965)
(article 5)
Racial and ethnic minorities equally should not be discriminated against and have equal access to
airing their views and sharing information of concern to them. Broadcasters also have a
responsibility to promote a culture of tolerance and ensure that their broadcasts do not become a
vehicle for spreading hatred and contempt of minority groups. Violations of the treaty can be
raised with the Committee on the Elimination of Racial Discrimination.
Convention on the Elimination of Discrimination against Women (1979) (article 3)
Equal access to and representation of women in the media are crucial to ensuring proper
coverage of issues of concern to women and to enable their full participation in public decision
making. Effective measures need to be taken to combat discrimination against women and to
promote their access to the media. Breaches can be raised with the Committee on the Elimination
of Discrimination Against Women.
Convention on the Rights of the Child (1989) (article 13)
This treaty clearly establishes not only children’s right to freedom of expression, but also their
right to have their views heard and to be given due weight in matters concerning them. States
should take positive measures to ensure that children are given effective opportunities to provide
input into public decisions affecting them, for example in the areas of education, health and
prevention of crime. Violations of these rights can be taken up with the Committee on the Rights
of the Child.
AFRICAN UNION (FORMERLY ORGANIZATION OF AFRICAN UNITY, OAU)
African Charter on Human and Peoples' Rights (1981) (article 9)
Article 9 of the main African human rights treaty provides for freedom of expression.
In November 2000, the African Commission on Human and Peoples' Rights (ACHPR), and
Article 19 adopted a joint statement noting the importance of freedom of expression, and the
limited protection given to this important right by Article 9 of the Charter. A Declaration of
Principles of Freedom of Expression was adopted by the ACHPR in October 2002.
COUNCIL OF EUROPE
The Council of Europe is a regional intergovernmental organization consisting of 45 countries. It
aims to defend human rights, parliamentary democracy and the rule of law. All members of the
European Union also belong to the Council of Europe.
European Convention on the Protection of Human Rights and Fundamental Freedoms (1950)
(article 10)
Freedom of expression is protected by article 10 of the European Convention and has been the
subject of a relatively large number of cases before the court. TheEuropean Court of Human
Rights has promoted the free flow of information and ideas, established important precedents

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which limit state powers to restrict freedom of expression, particularly in the areas of press and
broadcasting freedom, political expression, defamation, privacy, national security and
demonstrations. Some decisions of the court however have been widely criticized for failing to
uphold the right to freedom of expression. And resettlement, whatever the origin and nature of
their disability."
ORGANIZATION OF AMERICAN STATES (OAS)
American Convention on Human Rights (1969) (article 13)
The American Convention on Human Rights, which entered into force in 1978, protects the right
to freedom of thought and expression, the right to receive and impart information and for
restrictions to be imposed on this right only for limited circumstances, reputations of individuals,
national security, public order etc.
OAS Special Rapporteur on Freedom of Expression
This institution was created by the Inter-American Commission on Human Rights in October
1997 to strengthen the implementation of the right to freedom of expression. The mandate of the
Special Rapporteur includes the collection of information, the preparation of annual and thematic
reports and country visits. It also covers immediate notification of serious situations, or early
warning, as well as promotional activities.
The Inter-American Commission on Human Rights established a Voluntary Fund for Freedom
of Expression, to which member states could contribute, to facilitate the functioning of the
office of the special rapporteur. Promotional activities have included, the development of
declarations, networks, and technical support to states.
ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE)
The Organization for Security and Co-operation in Europe (OSCE) is the largest regional
security organization in the world with 55 participating States from Europe, Central Asia and
North America. OSCE was created by the Act which contained a provision to "respect … human
rights and fundamental freedoms, including freedom of thought, conscience and religion, and
belief", as well as "equal rights and self-determination of peoples".
The OSCE has been especially concerned with the freedom of the media which is one aspect of
the broader issue of freedom of expression. Such principles have been reiterated in a number of
OSCE documents e.g. 1990 Document of the Copenhagen Meeting of the Conference on the
Human Dimension of the CSCE (precursor to the OSCE). The OSCE has now created a special
institution to deal with these freedoms.
OSCE Representative on Freedom of the Media
In 1997 the OSCE established a Representative on Freedom of the Media following an OSCE
Heads of State declaration in 1996 that OSCE commitments to free press and media needed
strengthening. The OSCE Permanent Council set out the mandate of the Representative by
Decision 193 "to strengthen the implementation of relevant OSCE principles and commitments
[relating to a free, independent and pluralistic media] as well as to improve the effectiveness of
concerted action by the participating states based on their common values."

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The Representative is required to carry out a variety of activities including observing media
developments in OSCE states; and ensuring a rapid response to serious problems such as
obstruction of media activities in cooperation with the concerned state and other parties.
The Representative reports to the Permanent Council frequently and other OSCE bodies and
makes recommendations. He/she may also make oral or written statements on issues of urgent
concern and interventions with particular OSCE states. He/she also makes country visits some of
which result in in-depth reports and is able to receive information on violations from a variety of
sources.
Human rights observers say that the OSCE Representative operating in the more close-knit
structure of the OSCE has more political commitment and resources than the UN Special
Rapporteur, for example, and is also able to undertake promotional or project activities e.g.
holding conferences, producing publications, providing technical support and advice to
governments, financial and material assistance to set up independent media outlets etc.
The Organization of Islamic Conference (OIC)
The Charter of the Organization of Islamic Conference, 57 state parties, established in Morocco
in September 1969. Although Freedom of Expression is not explicitely mentioned in the Charter,
among the objectives of the Charter, is (Chapter 1) Article 1, paragraph 12:
To protect and defend the true image of Islam, to combat defamation of Islam and encourage
dialogue among civilisations and religions;
The Standing Committee for Information and Cultural Affairs of the OIC: established pursuant
to resolution 13/3 – P (IS) adopted by the Third Islamic Summit Conference, held in Saudi
Arabia in January 1981.
The Cairo Declaration on Human Rights in Islam, signed in August 1990, 54 states parties
Article 22:
a) Everyone shall have the right to express his opinion freely in such manner as would not be
contrary to the principles of the Shari’ah.
b) Everyone shall have the right to advocate what is right, and propagate what is good, and warn
against what is wrong and evil according to the norms of Islamic Shari’ah.
The League of Arabs
Arab Charter on Human Rights, 2004, entered into force March 15, 2008, 7 state parties
Article 32:
1. The present Charter guarantees the right to information and to freedom of opinion and
expression, as well as the right to seek, receive and impart information and ideas through any
medium, regardless of geographical boundaries.
2. Such rights and freedoms shall be exercised in conformity with the fundamental values of
society and shall be subject only to such limitations as are required to ensure respect for the
rights or reputation of others or the protection of national security, public order and public health
or morals.
National Protection and Service Agencies

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Countries that have ratified these international and regional treaties have agreed to meet their
obligations under these conventions by implementing these provisions fully at the national level.
This should mean in the first instance reviewing their laws relating to freedom of expression and
adapting these to ensure they are in conformity or adopting new laws to meet these requirements.
Implementation of the right to freedom of expression remains problematic in many countries and
governments in many cases are failing to fulfil their obligations. Problems and concerns with
implementation in individual countries is well documented in reports of the Special Rapporteurs
of the UN, OAS and OSCE as well as submissions to them by NGOs.

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