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BRIEFING NOTE SERIES

Freedom of Expression
Centre for Law and Democracy
International Media Support (IMS)

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July 2014
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This publication was produced with the generous support of the governments of Denmark,
Sweden and Norway.
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Centre for Law and Democracy (CLD) International Media Support (IMS)
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Canada

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© CLD, Halifax and IMS, Copenhagen

ISBN 978-87-92209-62-7

This work is licenced under the Creative Commons Attribution-NonCommercial-ShareAlike

4.0 International licence. To view a copy of this licence, visit:
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and Democracy and International Media Support; do not use this work for commercial
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Abbreviations
ACHR American Convention on Human Rights
COE Council of Europe
ECHR European Court of Human Rights
ICCPR International Covenant on Civil and Political Rights
ICT Information and communications technology
IPC Indonesia Press Council
OAS Organization of American States
OSCE Organization for Security and Co-operation in Europe
PKK Kurdistan Workers’ Party
PSB Public service broadcaster
RTI Right to information
UDHR Universal Declaration of Human Rights
UN United Nations
UNHRC United Nations Human Rights Committee
UNESCO United Nations Educational, Scientific and Cultural Organization

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Contents
Introduction 1
Briefing note 1: Freedom of Expression as a Human Right 2
Briefing note 2: Restrictions on Freedom of Expression 5
Briefing note 3: The Right to Information 9
Briefing note 4: Independent Regulation of the Media 13
Briefing note 5: Regulation of Journalists 16
Briefing note 6: Print Media 20
Briefing note 7: Broadcast Regulation 23
Briefing note 8: Media Diversity 27
Briefing note 9: Public Service Broadcasting 30
Briefing note 10: Criminal Content Restrictions 33
Briefing note 11: Civil Content Restrictions 39
Briefing note 12: Digital Rights 43
International Organisations Active on Freedom of Expression 47
Glossary 48

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 INTRODUCTION

Introduction
This series of Briefing Notes is designed to restrictions on freedom of expression, as
give readers an understanding of the key well as on the right to information (or
international legal standards that apply in freedom of information) and digital rights.
the context of freedom of expression. They
are aimed at an audience which does not In addition to providing substantive
necessarily have a deep understanding of guidance in the relevant thematic area, the
freedom of expression issues, but they also Briefing Notes contain a number of pithy
aim to be of interest and relevance to more quotes from leading sources. The idea is to
sophisticated freedom of expression provide readers with quick access to
observers and practitioners. Thus, while ‘quotable quotes’ for possible reuse in their
the Briefing Notes are designed to be work. Each Note also contains a section at
broadly accessible, they also provide the end on further resources, for readers
readers with fairly in-depth knowledge who want to probe the subject more
about freedom of expression issues. deeply.

Each individual Briefing Note addresses a The Briefing Notes are available in two
different thematic freedom of expression different formats. They are available as a
issue. The first, perhaps predictably, is collection in physical print format as well as
titled Freedom of Expression as a Human electronically at www.law-democracy.org
Right, while the second looks at the and www.mediasupport.org. But they have
permissible scope of restrictions on also been designed as stand-alone products
freedom of expression under international and are thus available as individual Briefing
law. Several of the Briefing Notes focus on Notes. This is to provide easy accessibility to
different areas of media regulation, readers who want to focus on just one or two
including print, broadcast and public thematic areas, without feeling they need to
service media, journalists, media diversity read through masses of extraneous text.
and independent regulation. This reflects
the central role media regulation plays The Centre for Law and Democracy (CLD)
both in terms of guaranteeing freedom of and International Media Support (IMS)
expression and in the legal frameworks hope you find these Briefing Notes
found in democracies relating to freedom accessible and useful and we also welcome
of expression. There are also Briefing feedback at [email protected] and
Notes on both criminal and civil [email protected]. Happy reading.

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BRIEFING NOTE 1: FREEDOM OF EXPRESSION AS A HUMAN RIGHT

BRIEFING NOTE 1
Freedom of Expression as a
Human Right
Freedom of expression is a core human agenda will require that all
right which is guaranteed under populations enjoy the fundamental
international law and by virtually every rights of freedom of opinion and
constitutional bill of rights in the world. It expression. These rights are
is key to human development, dignity, essential to democracy,
personal fulfilment and the search for transparency, accountability and
truth, and a fundamental pre-requisite for the rule of law. They are vital for
democracy and good governance. It human dignity, social progress and
facilitates free debate about and between inclusive development.
competing political parties, enables citizens
to raise concerns with authorities and The right to freedom of expression is
ensures that new policies and legislation recognised in all of the main international
may be the subject of careful scrutiny. The and regional human rights treaties. This
quality of government is enhanced by free includes, most notably, the Universal
speech because it helps to ensure that Declaration of Human Rights (UDHR),
authorities are competent and honest and which was adopted unanimously by the
allows individuals to voice concerns about United Nations General Assembly in 1948.
and debate government action. Put While the UDHR is not formally legally
differently, democratic values are under binding on States, its guarantee of freedom
threat when information and ideas are not of expression is widely regarded as having
permitted to flow freely. acquired legal force as customary
international law. Article 19 of the UDHR
The importance of freedom of expression states:
has been emphasised by a vast array of
different actors. A good example of this is Everyone has the right to freedom
the joint statement by United Nations of opinion and expression; this
Secretary-General Ban Ki-moon and right includes freedom to hold
UNESCO Director-General Irina Bokova opinions without interference and
on World Press Freedom Day, 3 May 2014: to seek, receive and impart
information and ideas through any
This year, the international media and regardless of frontiers.
community has a once-in-a-
generation opportunity to prepare Similar language is included in Article 19
a long-term agenda for sustainable of the International Covenant on Civil and
development to succeed the Political Rights (ICCPR), a formally legally
Millennium Development Goals binding treaty ratified by 168 States as of
when they end in 2015. April 2014:
Successfully implementing that

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(1) Everyone shall have the right to [F]reedom of expression ... is applicable
freedom of opinion. not only to “information” or “ideas”
(2) Everyone shall have the right to that are favourably received ... but also
freedom of expression; this right shall to those which offend, shock or disturb
include freedom to seek, receive and the State or any other sector of the
impart information and ideas of all population. Such are the demands of
kinds, regardless of frontiers, either pluralism, tolerance and
orally, in writing or in print, in the broadmindedness without which there
form of art or through any other is no “democratic society”.
media of his choice.
Third, the right applies to expressions
Freedom of expression is also protected in regardless of the media through which they
regional human rights treaties, including are made, including broadcasting and
the African Charter on Human and newspapers, the Internet, public debates,
People’s Rights, the American Convention academic research and verbal expressions.
on Human Rights and the European
Convention on Human Rights. Fourth, the right to freedom of expression
includes not only the right to ‘impart’
Although technically different from information and ideas (i.e. the right to
freedom of expression, Article 19 also speak) but also the right to ‘seek’ and
protects the right to hold opinions. ‘receive’ information from others. In other
Importantly, while freedom of expression words, freedom of expression enables
may be restricted, the right to hold every citizen not only to contribute to the
opinions is absolute; the State may never public sphere, but also to have access to a
legitimately limit this right. wide range of information and viewpoints.
The right to freedom of expression is broad This is a very important aspect of the right,
and multifaceted in scope. First, as a which serves as the underpinning of
human right, and as is clear from Article important freedom of expression concepts
19, freedom of expression belongs to such as media diversity and the right to
everyone. No distinctions are permitted, access information held by public
among other things, on the basis of a authorities.
person’s race, colour, nationality, sex,
language, social origin or property. Fifth, another important aspect of the right to
freedom of expression is that it imposes both
Second, it includes the right to impart negative and positive obligations on the State. In
information and ideas “of all kinds”. The its negative aspect, the right places an obligation
right to express oneself encompasses not on States not to interfere with the exercise of the
only speech which is generally accepted or right to seek, receive and impart information
is respectful in tone but also controversial and ideas, except as permitted under
or offensive speech. Indeed, one of the international law. The positive obligation is
most important aspects of the right to essentially to create an environment which
freedom of expression is the protection of supports a free flow of information and ideas in
unpopular speech. This was made clear by society, and includes elements such as the
the European Court of Human Rights obligation to put in place a legal framework for
(ECHR) in the case of Handyside v. United accessing public information and to create an
Kingdom: environment in which a free and independent
media can flourish.

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support for open public discourse but, at

Sixth, the right to freedom of expression the same time, nearly every State has laws
applies regardless of frontiers. This means and practices which fail to conform to
that it protects the right to access information international human rights standards. This
from abroad, whether in the form of ranges from prior censorship regimes to
broadcasting, newspapers, the Internet or harsh criminal penalties for disseminating
speaking to someone in another country. prohibited speech to regulatory regimes
which give the government undue control
Unlike the right to hold opinions, the right over the media, public or private, to
to freedom of expression is not absolute. It overbroad content restrictions to failures
is universally recognised that certain key to implement access to information laws
public and private interests may justify the properly. All States should review their
placing of restrictions on this right. legal frameworks and implementation
However, international law sets out a strict practices to make sure that they conform
three-part test which must be met in order to international and constitutional
for a restriction to be valid (see Briefing standards. This is a particular priority for
Note 2). transitional democracies, where a barrage
of illegitimate legal rules often remain in
Most States recognise the importance of place and can act as a serious impediment
freedom of expression and proclaim their to the process of democratisation.

FURTHER READING
!
• Case Law databases:
o African Commission on Human and Peoples’ Rights:
http://www.achpr.org/communications/
o European Court of Human Rights:
http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx#{"documentcollectionid2
":["CASELAW"]}
o Inter-American Court of Human Rights: http://www.corteidh.or.cr
o UN Human Rights Committee:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=e
n&TreatyID=8&DocTypeID=17

• International Covenant on Civil and Political Rights, UN General Assembly

Resolution 2200A(XXI) of 16 December 1966, in force 23 March 1976:
http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

• UN Human Rights Committee, General Comment No. 34, 12 September 2011,

CCPR/C/GC/34:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=
CCPR%2fC%2fGC%2f34&Lang=en

• Universal Declaration of Human Rights, UN General Assembly Resolution 217A(III)

of 10 December 1948: http://www.un.org/en/documents/udhr/

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BRIEFING NOTE 2
Restrictions on Freedom of
Expression
Although freedom of expression is a necessity and proportionality.
fundamental human right, it is recognised [references omitted]
under international law that it is not an
absolute right and that it may, in Article 19(3) of the ICCPR establishes a
appropriate cases, be restricted. The test three-part test for the validity of
for whether or not a restriction on freedom restrictions on freedom of expression.
of expression is justified is found in Article First, a restriction must be in accordance
19(3) of the International Covenant on with a law. This includes primary
Civil and Political Rights (ICCPR): legislation, as well as regulations and other
legally binding documents adopted
The exercise of the rights provided pursuant to primary legislation. This
for in paragraph 2 of this article would include, for example, a binding code
carries with it special duties and of conduct for the media adopted by a
responsibilities. It may therefore be broadcast regulator pursuant to
subject to certain restrictions, but broadcasting legislation. Under this part of
these shall only be such as are the test, the power to authorise restrictions
provided by law and are necessary: on freedom of expression is essentially
(a) For respect of the rights or vested in the legislative branch of
reputations of others; government.
(b) For the protection of national
security or of public order It is not enough simply to have a law; the
(ordre public), or of public law must also meet certain standards of
health or morals. clarity and accessibility. If restrictions are
unduly vague, or otherwise grant
This test is strict, with narrowly drawn excessively discretionary powers of
conditions. In its September 2011 General application to the authorities, they fail to
Comment No. 34 on Article 19 of the meet the main purpose of this part of the
ICCPR, the UN Human Rights Committee test, namely to limit the power to restrict
(UNHRC) stated: freedom of expression to the legislature.
Unduly vague rules may also be
Paragraph 3 lays down specific interpreted in a manner which gives them
conditions and it is only subject to a wide range of different meanings. It
these conditions that restrictions would be inconsistent with democracy to
may be imposed: the restrictions give officials the power to make up the
must be “provided by law”; they rules as they go and this would also not be
may only be imposed for one of the fair to individuals, who should be given
grounds set out in subparagraphs reasonable notice of exactly what is
(a) and (b) of paragraph 3; and they prohibited.
must conform to the strict tests of

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Not only do vague laws bypass democratic

legislative control, they can also result in a Furthermore, the restriction must be
‘chilling effect’, whereby individuals steer primarily directed at one of the legitimate
far clear of controversial topics because aims and serve it in both purpose and
there is uncertainty about what is effect. For example, a restriction that has a
permitted and what is not. The chilling purpose directed at one of the legitimate
effect can be exacerbated where penalties aims listed but has a merely incidental
for breach of the law are unduly harsh. As effect on that aim cannot be justified.
the UNHRC stated in General Comment
No. 34: Third, the restriction must be necessary for
the protection or promotion of the
For the purposes of paragraph 3, a legitimate aim. The necessity element of
norm, to be characterized as a the test presents a high standard to be
“law”, must be formulated with overcome by the State seeking to justify the
sufficient precision to enable an interference, apparent from the following
individual to regulate his or her quotation, cited repeatedly by the
conduct accordingly and it must be European Court of Human Rights
made accessible to the public. A (ECHR):
law may not confer unfettered
discretion for the restriction of Freedom of expression, as
freedom of expression on those enshrined in Article 10, is subject
charged with its execution. Laws to a number of exceptions which,
must provide sufficient guidance to however, must be narrowly
those charged with their execution interpreted and the necessity for
to enable them to ascertain what any restrictions must be
sorts of expression are properly convincingly established.
restricted and what sorts are not.
To determine if a restriction is necessary,
Second, the restriction must serve a courts have identified four aspects of this
legitimate aim. Article 19(3) of the ICCPR part of the test. First, there must be a
sets out a list of legitimate aims: respect for pressing or substantial need for the
the rights and reputations of others, restriction; minor threats to legitimate
protection of national security, public aims do not pass a threshold test for
order, public health or morals. The restricting freedom of expression. Second,
UNHRC has made clear that this list is the approach taken must be the least
exclusive, so that restrictions which do not intrusive manner of protecting the
serve one of the listed aims are not valid: legitimate aim. If there is an alternative
measure which would accomplish the same
Restrictions are not allowed on grounds goal in a way which is less intrusive, the
not specified in paragraph 3, even if such measure chosen is clearly not necessary.
grounds would justify restrictions to other For example, licensing newspapers would
rights protected in the Covenant. be an effective way to prevent undue
Restrictions must be applied only for those concentration of ownership, but this
purposes for which they were prescribed objective can be achieved in ways that are
and must be directly related to the specific far less harmful to freedom of expression
need on which they are predicated and so licensing cannot be justified on this
(UNHRC, General Comment No. 34). basis.

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Third, the restriction must impair the right means of its dissemination. For
as little as possible in the sense that it is not instance, the value placed by the
‘overbroad’. For example, while it is Covenant upon uninhibited
legitimate to prohibit defamatory expression is particularly high in
statements, these rules should be limited to the circumstances of public debate
speech which illegitimately undermines in a democratic society concerning
reputations. Banning all speech which was figures in the public and political
critical would be overbroad since much domain.
critical speech is true or otherwise
reasonable. When a State party invokes a
legitimate ground for restriction of
Fourth, a restriction must be freedom of expression, it must
proportionate. This part of the test demonstrate in specific and
involves weighing the likely effect on individualized fashion the precise
freedom of expression against the benefits nature of the threat, and the
of the restriction in terms of the legitimate necessity and proportionality of the
aim which is sought to be protected. specific action taken, in particular
Where the harm to freedom of expression by establishing a direct and
outweighs the benefits, a restriction cannot immediate connection between the
be justified, keeping in mind that the right expression and the threat.
to freedom of expression is a fundamental [references omitted]
human right.
It is important to note that, in applying this
In General Comment No. 34, the UNHRC test, courts and others should take into
summarised these conditions as follows: account all of the circumstances at the time
the restriction is applied. For example, in
Restrictions must not be the case of Zana v. Turkey, the ECHR
overbroad. The Committee noted, in evaluating a statement made in
observed in general comment No. support of the PKK, a militant separatist
27 that “restrictive measures must group:
conform to the principle of
proportionality; they must be The statement cannot, however, be looked
appropriate to achieve their at in isolation. It had a special significance
protective function; they must be in the circumstances of the case, as the
the least intrusive instrument applicant must have realised… the
amongst those which might interview coincided with murderous
achieve their protective function; attacks carried out by the PKK on civilians
they must be proportionate to the in south-east Turkey, where there was
interest to be protected…The extreme tension at the material time.
principle of proportionality has to
be respected not only in the law An identical statement carried out in
that frames the restrictions but also peacetime may not have met the threshold
by the administrative and judicial of necessity, but the specific conditions at
authorities in applying the law”. that time, and in that area justified the
The principle of proportionality imposition of the restriction in that case.
must also take account of the form
of expression at issue as well as the

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FURTHER READING
!
• Toby Mendel, Restricting Freedom of Expression: Standards and Principles,
March 2010: http://www.law-democracy.org/wp-
content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf

• UN Human Rights Committee, General Comment No. 34, 12 September 2011,

CCPR/C/GC/34:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symboln
o=CCPR%2fC%2fGC%2f34&Lang=en

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 BRIEFING NOTE 3: THE RIGHT TO INFORMATION

BRIEFING NOTE 3
The Right to Information
In 1913, Louis Brandeis, a famous United commercial value to RTI, since it increases
States jurist, noted: “Sunlight is said to be the competitive nature of tenders and
the best of disinfectants.” Although it has businesses often find creative ways of
taken a bit of time for that sentiment to monetising public information, either to
translate into legislative reforms to give increase the efficiency of their business
individuals a right to access information models or to develop innovative new
held by public authorities or the right to products.
information (RTI), the last 25 years have
witnessed a virtual revolution in that The right to information is now firmly
respect. In 1989, there were just thirteen recognised as a human right under
national RTI laws globally, today there are international law. Article 19 of the
some one hundred. Over 5.5 billion people, International Covenant on Civil and
78% of the world’s population, live in a Political Rights (ICCPR) protects not only
State which has provided legal recognition the right to communicate, but also the
to the right to information. right to seek and receive information and
ideas, which serves as the jurisprudential
There are several reasons why the right to foundation for the human right to
information is of fundamental importance information under international law.
in a democracy. The underlying principle
is that officials hold information not for The earliest formal recognition of the right
themselves but, rather, on behalf of the to information as a general human right
public. There are also strong practical was in a 2006 case decided by the Inter-
reasons to give legal effect to RTI. In order American Court of Human Rights, Claude
to participate effectively in decision- Reyes v. Chile, in which the Court stated:
making, citizens need to be able to access
the information that governments have In respect of the facts of the present
used to come up with proposed decisions. case, the Court considers that
The right to information is also an article 13 of the Convention, in
important tool in combating corruption guaranteeing expressly the rights to
and facilitating oversight of public bodies. “seek” and “receive” “information”,
Even where specific information protects the right of every person
disclosures do not directly reveal instances to request access to the information
of mismanagement, fostering a culture of under the control of the State, with
openness and accountability encourages the exceptions recognised under
responsible use of public resources. The the regime of restrictions in the
right to information also serves to build Convention. Consequently, the
public trust in State institutions. Access to said article encompasses the right
information can serve social goals, of individuals to receive the said
including through giving individuals information and the positive
greater control over their personal obligation of the State to provide it,
information. There is also an important in such form that the person can

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BRIEFING NOTE 3: THE RIGHT TO INFORMATION

have access in order to know the governments may legitimately withhold

information or receive a motivated certain information. It would not, for
answer when for a reason example, be reasonable for citizens to
recognised by the Convention, the obtain access to a list of the names of
State may limit the access to it in undercover police informants or private
the particular case. The information belonging to third parties.
information should be provided However, exceptions to the right should be
without the need to prove direct crafted and interpreted as narrowly as
interest or personal involvement in possible.
order to obtain it, except in cases in
which a legitimate restriction is A three-part test applies to any exceptions
applied. to the right to information. First, the
exception must relate to a legitimate aim
Both the European Court of Human Rights which is set out clearly in the right to
and the UN Human Rights Committee information law. Although there is no
have subsequently recognised the right to universally recognised list of legitimate
information, with the latter stating in its exceptions, these are generally understood
2011 General Comment on Article 19 of as being limited to national security;
the ICCPR: international relations; public health and
safety; the prevention, investigation and
Article 19, paragraph 2 embraces a prosecution of legal wrongs; privacy;
right of access to information held legitimate commercial and other economic
by public bodies. Such information interests; management of the economy; fair
includes records held by a public administration of justice; legal advice
body, regardless of the form in privilege; conservation of the environment;
which the information is stored, its and legitimate policy making and other
source and the date of production. operations of public authorities.

The core principle underpinning the right Second, any decision to withhold
to information is the principle of information should be based on a harm
maximum disclosure with limited test. It is not legitimate to withhold
exceptions. Maximum disclosure information simply because it relates to a
essentially means that States should protected interest. Rather, there should be
endeavour to make as much information an onus on the public body to demonstrate
as possible publicly available, and that that disclosure of the information will
provisions granting access should be cause specific harm to one of the listed
interpreted as broadly as possible. There interests. Moreover, if it is reasonably
should be a general presumption that all possible to sever or redact the sensitive
types of information held by all public information, the remainder of the
authorities should be accessible, and that document should still be released. Finally,
the right should apply broadly, so that there should be a public interest override,
non-citizens and legal entities enjoy a right whereby the information is withheld only
of access. if the harm to the listed interest outweighs
the overall public interest in disclosure. For
However, the right to information, like the example, if the information exposes
right to freedom of expression from which corruption or human rights abuses, there is
it is derived, is not absolute and

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generally a very high public interest in authorities which repeatedly fail to live up
favour of disclosure. to their obligations under the law.

In addition to these basic principles, a An effective RTI law will also include
strong RTI system will include a clear administrative rules aimed at facilitating
procedural framework designed to effective implementation. These should
facilitate access in an efficient and include obligations to appoint specialised
affordable manner. This should include officials to receive and process requests, to
clear and user friendly procedures for provide training to their staff, to maintain
making requests, along with quick their records in good condition, and to
timelines for responding to them (ideally report annually on what they have done to
between two and three weeks). It should be implement the law.
free to file requests, and public bodies
should only be permitted to charge fees Proactive publication is also a critical
based on the reasonable cost of aspect of the right to information. In the
reproducing and delivering the digital age, there is an increasing emphasis
information. If an information request is on open government, and on providing as
refused, the public body should be much information as possible on a
required to contact the requester and proactive basis, mainly via the Internet. In
provide them with an explanation and addition to facilitating greater public access
information about their options for to information, proactive publication is an
appealing the ruling. efficient use of public resources,
particularly for information which is likely
A strong RTI system will also include a to be the subject of an access request. It is
specialised oversight body, such as an far easier to publish a document online
information commission or commissioner, than to respond to even one request for it.
with the power to hear and determine Information should be published in as
appeals against refusals of access or other user-friendly a manner as possible, in
infringements of the law, as well as wider machine processible formats rather than
powers to support strong implementation scanned versions of a paper document, and
of the law. The oversight body should have with effective search facilities for finding
adequate resources and statutory powers to the information.
perform its functions, including the ability !
to order disclosure of information and to
impose other structural remedies on public

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FURTHER READING
!
• Andrew Puddephatt and Elizabeth McCall, “A Guide to Measuring the Impact of
Right to Information Programmes”, United Nations Development Programme,
April 2006: http://omec.uab.cat/Documentos/ddhh_comunicacio/0083.pdf

• Right 2 Info, a resource with right to information legislation and policies:

http://www.right2info.org

• RTI Rating, a comparative analysis of right to information legislation around the

world: http://www.rti-rating.org

• Toby Mendel, The Right to Information: A Comparative Legal Survey, UNESCO,

2008: http://portal.unesco.org/ci/en/ev.php-
URL_ID=26159&URL_DO=DO_TOPIC&URL_SECTION=201.html

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 BRIEFING NOTE 4: INDEPENDENT REGULATION OF THE MEDIA

BRIEFING NOTE 4
Independent Regulation of the
Media
A number of important public interest against interference, particularly of
goals are achieved through regulation of a political or economic nature,
the media, and especially the broadcast including by an appointments
media. It has traditionally been necessary process for members which is
for regulation to serve as a gatekeeper transparent, allows for public input
regarding access to the airwaves, a limited and is not controlled by any
public resource. Regulation can also particular political party.
promote important diversity goals, and
prevent harmful content, for example for More recently, the UN Human Rights
children, from being aired at inappropriate Committee (UNHRC) made the following
times. Good legislation can support these statement (with specific reference to
goals, but only where there is impartiality broadcast regulators) in its 2011 General
and fairness in the application of the rules. Comment on Article 19 of the
Without independent oversight, even the International Covenant on Civil and
best regulatory rules can be turned into Political Rights (ICCPR):
tools to suppress dissenting voices. Even if
the laws are not overtly abused, the It is recommended that States
presence of conflicts of interest can lead to parties that have not already done
perverse regulatory decisions. In many so should establish an independent
countries, political interference in and public broadcasting licensing
regulatory bodies has historically been the authority, with the power to
main concern but, in others, the greater examine broadcasting applications
threat is of regulatory capture by powerful and to grant licenses.
commercial media players. Regulators
which are properly insulated against both Independence is important for all bodies
political and commercial influences are that exercise regulatory powers over the
best able to perform their duties in the media. However, many democracies
public interest. impose only very light-touch regulatory
constraints on the print media sector and
In their 2003 Joint Declaration, the (then) do not have any specialised regulatory
three special international mandates on bodies governing this sector. In these
freedom of expression at the UN, the OAS countries, self-regulatory models, such as a
and the OSCE noted the need for press council, are given preference over
independence among media regulatory statutory bodies. However, independence
bodies: is also an important value for self-
regulatory bodies (see Briefing Note 6).
All public authorities which
exercise formal regulatory powers It is different in the broadcasting sector
over the media should be protected where, as noted, statutory regulators often

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BRIEFING NOTE 4: INDEPENDENT REGULATION OF THE MEDIA

wield important powers, including insulate the process from political and
licensing who may operate a media outlet. commercial interference. It is important to
Independence is crucially important here, provide for a role for civil society and the
especially if the public interest in media wider public, and to leave important
diversity, a goal which should underlie decisions to representative bodies, such as
broadcast licensing, is to prevail. a committee of parliament, rather than an
Independence is also important in the individual. This should be supported by
development and application of codes of rules on security of tenure for members
broadcasting conduct, which touch directly which only allow for removal in
on media content. Independent oversight exceptional circumstances, with clear
also encourages investment in the procedural requirements and the
broadcasting sector, among other things by possibility of judicial review.
building confidence that regulatory
decisions will be adjudicated fairly and that The legislation should include safeguards
investments will be protected against against conflicts of interest, both political
arbitrary action. and commercial. For example, better
practice is to prohibit individuals who are
One important measure to promote the employed in government, the civil service
independence of regulatory bodies is to or a political party, or who hold an elected
stipulate clearly in the enabling legislation office, from serving on the board.
that they are independent. According to Individuals who hold significant financial
the Council of Europe’s Recommendation interests in either the broadcasting or
No. R(2000)23: telecommunications sectors should also be
prohibited from serving on the board.
Member States should ensure the Financial security is also central to the
establishment and unimpeded independence of a regulatory body. The
functioning of regulatory best way to achieve this is to set out the
authorities for the broadcasting framework for funding clearly in the law,
sector by devising an appropriate including the way annual budgets are
legislative framework for this approved, and in a manner which is
purpose. The rules and procedures insulated from political interference.
governing or affecting the Providing for regulators to be funded from
functioning of regulatory the fees which are charged for issuing
authorities should clearly affirm broadcast licences can be both a logical
and protect their independence. cost-recovery tool and a means of
bolstering independence. At the same time,
The enabling legislation should also many regulators either need to have these
include structural measures to promote fees supplemented from or to remit excess
independence. A key aspect of this is how fees to the general budget, so that the
members of the governing board are budget approval process remains very
appointed. At a minimum, the important.
appointments procedure should be spelled
out clearly in the enabling legislation. As important as it is to protect regulators
Involving a wide range of actors in the from political and commercial
appointments process – including interference, this does not mean they are
nominations, review of shortlisted free to operate as they wish, without being
candidates and the final selection – helps held accountable. Rather than reporting to

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 BRIEFING NOTE 4: INDEPENDENT REGULATION OF THE MEDIA

the executive, however, better practice is It is important to note that the principle of
for regulators to report to a multi-party independence applies to regulatory
body, such as the legislature or a legislative decisions, and especially decisions which
committee. Providing for public impact on individual broadcasters, such as
participation in key decision-making licensing decisions and adjudicative
processes, such as licensing, also helps to decisions based on the code of conduct.
ensure accountability. Important decisions Government retains, however, a policy
should also be subject to judicial review role, especially in relation to more
and regulators should be required to important policy decisions, such as the
publish an annual report, along with technology and timetable regarding the
audited accounts. digital transition.

FURTHER READING
!
• Kristina Irion and Roxana Radu, “Delegation to independent regulatory
authorities in the media sector: A paradigm shift through the lens of regulatory
theory” in The Independence of the Media and Its Regulatory Agencies: Shedding
New Light on Formal and Actual Independence Against the National Context,
2013: http://www.ivir.nl/publications/irion/Radu_2013.pdf

• Steve Buckley, Kreszentia Duer, Toby Mendel, Seán Ó Siochrú, Broadcasting,

Voice, and Accountability A Public Interest Approach to Policy, Law, and
Regulation, 2008: http://www.press.umich.edu/pdf/9780472032723-fm.pdf
!

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BRIEFING NOTE 5: REGULATION OF JOURNALISTS

BRIEFING NOTE 5
Regulation of Journalists
The power of the media to influence public would … be in violation not only
discourse makes journalists an attractive the right of each individual to seek
target for illegitimate government control. and impart information and ideas
Thomas Jefferson once famously remarked through any means of his choice,
that if he had to choose between “a but also the right of the public at
government without newspapers, or large to receive information
newspapers without a government, [he] without any interference.
should not hesitate a moment to prefer the The underlying rationale for this stems
latter”. The media’s core role as a from the fact that the right to express
mechanism for government accountability oneself through the mass media belongs to
and as a primary source of news and other everyone, not simply to a selected group
information necessitates a light regulatory who meet certain requirements (see
touch. In democracies, journalists are not Briefing Note 1). In this respect,
subject to any special form of regulation journalism is different from other
although they do enjoy certain benefits and professions – such as being a doctor, a
privileges. lawyer or an engineer – inasmuch as
engaging in the subject matter of what
those other professions do, unlike
Licensing journalism, is not a human right.
Licensing schemes for journalists, whereby
individuals are prohibited from practising Licensing journalists is illegitimate because
journalism unless they are licensed, violate it is susceptible of abuse and the power to
the right to freedom of expression. General distribute licences can become a political
conditions on who may practise tool. While the purpose of licensing
journalism, such as a requirement to hold a schemes is ostensibly to ensure that the
university degree, to have attained a task of informing the public is reserved for
certain age or to belong to a particular competent persons of high moral integrity,
professional association, are similarly the Inter-American Court of Human
illegitimate. This was spelled out clearly in Rights rejected this argument, noting that
a 1985 case decided by the Inter-American other, less restrictive means were available
Court of Human Rights, which stated: for enhancing the professionalism of
journalists. In practice, formal conditions
It follows from what has been said on journalists have not been effective in
that a law licensing journalists, promoting more professional journalism.
which does not allow those who are
not members of the “colegio” to Registration schemes, which formally
practice journalism and limits require journalists to register themselves as
access to the “colegio” to university journalists, are not common and they
graduates who have specialized in would almost certainly fail to pass the test
certain fields, is not compatible for restrictions on freedom of expression
with the Convention. Such a law under international law. There is no reason

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for imposing such a requirement and it body. Second, access to accreditation

represents a fetter on the freedom to benefits should be based on fair and
practise journalism. objective criteria, including the size and
type of audience reached. The UN Human
Licensing or registration requirements are Rights Committee (UNHRC) has held, for
even less legitimate in the digital age, as the example, that accreditation schemes which
proliferation of bloggers and other are biased against freelance journalists are
amateur newsgatherers has blurred the line not legitimate. Accreditation schemes
between who is and is not a journalist. should also be open to digital journalists,
With the democratisation of online media, again based on fair and objective criteria.
it would be highly problematic to try and Finally, accreditation schemes should not
restrict who can comment on events of be used to impose substantive reporting
public importance, or report on their restrictions on journalists or be subject to
experiences. withdrawal based on an assessment of the
These standards are without prejudice to substance of a journalist’s reporting.
the right of private associations, including
private journalists’ associations, to set The special international mandates on
standards for their members. freedom of expression elaborated on these
principles in their 2003 Joint Declaration,
stating:
Accreditation
Freedom of expression includes a right to Accreditation schemes for
be informed. As the eyes and ears of the journalists are appropriate only
public, journalists play a key role in where necessary to provide them
making this aspect of the right a reality. As with privileged access to certain
a result, it is legitimate to provide for places and/or events; such schemes
special or privileged access for journalists should be overseen by an
to limited space venues where events of independent body and
public interest are taking place, such as accreditation decisions should be
parliaments and courts. The rationale for taken pursuant to a fair and
this is not that journalists have special transparent process, based on clear
rights to freedom of expression or to access and non-discriminatory criteria
information but, rather, that such access is published in advance.
necessary to protect the right of the public !
as a whole to receive information, which is
included in international guarantees of the
Sources
right to freedom of expression. The right of journalists to refuse to divulge
their confidential sources of information is
The accepted method of ensuring that recognised in democracies around the
journalists can access these limited space world and in international law. This has
venues is through accreditation. Under been recognised by the UNHRC, which
international law, certain principles apply stated in its 2011 General Comment No.
to accreditation schemes. First, like all 34:
regulatory systems, and to ensure that they
are not abused as a means to influence the States parties should recognize and
work of journalists, accreditation schemes respect that element of the right of
should be overseen by an independent freedom of expression that

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BRIEFING NOTE 5: REGULATION OF JOURNALISTS

embraces the limited journalistic can be validly invoked by anyone who is

privilege not to disclose “regularly or professionally engaged in the
information sources. collection and dissemination of information
to the public via any means of mass
The basic rationale for protection of communication” (see Council of Europe
sources was set out very clearly in a case Recommendation No. R(2000)7).
before the European Court of Human
Rights, Goodwin v. United Kingdom, as
follows:
Safety
Physical threats and attacks against media
Protection of journalistic sources is workers which are aimed at silencing them
one of the basic conditions for are an extremely serious interference with
press freedom.... Without such the right to freedom of expression. As the
protection, sources may be special international mandates on freedom
deterred from assisting the press in of expression noted in their 2012 Joint
informing the public on matters of Declaration:
public interest. As a result the vital
public-watchdog role of the press [V]iolence and other crimes
may be undermined and the ability against those exercising their right
of the press to provide accurate and to freedom of expression …
reliable information may be represent attacks not only on the
adversely affected. Having regard victims but on freedom of
to the importance of the protection expression itself, and on the right
of journalistic sources for press of everyone to seek and receive
freedom in a democratic society information and ideas.
and the potentially chilling effect
an order of source disclosure has States’ obligations in this area can be
on the exercise of that freedom, grouped into three separate categories.
such a measure cannot be First, officials should never take part in,
compatible with Article 10 of the sanction or condone attacks against the
Convention unless it is justified by media or media facilities. This also
an overriding requirement in the encompasses a positive obligation on
public interest. senior authorities to publicly condemn
attacks when they do occur.
Once again, the jurisprudential basis for this
is the right of the general public to receive Second, States should take effective action
information rather than a special right of to prevent the occurrence of violent
journalists to disseminate or access attacks. In their 2012 Joint Declaration, the
information. As a result, although the right special international mandates on freedom
to preserve the confidentiality of sources is of expression noted:
often referred to as a right of journalists, it

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States have an obligation to take Finally, States have an obligation to launch

measures to prevent crimes against independent, speedy and effective
freedom of expression in countries investigations when attacks do take place,
where there is a risk of these with a view to bringing the guilty parties to
occurring and in specific situations justice and to providing an effective
where the authorities know or remedy for the victim. The UN Human
should have known of the existence Rights Committee, in its 1996 Concluding
of a real and immediate risk of such Observations to Guatemala, stated that
crimes, and not only in cases where these investigation should enable victims
those at risk request State to discover the truth about the acts
protection. committed, to learn who committed the
acts and to obtain suitable compensation.

FURTHER READING
!
• Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism, 13 November 1985, Inter-American Court of Human Rights:
http://www.corteidh.or.cr/docs/opiniones/seriea_05_ing.pdf

• Special international mandates on freedom of expression, Joint Declaration on

Crimes Against Freedom of Expression, 2012: http://www.law-
democracy.org/live/legal-work/standard-setting/

• UNESCO, UN Plan of Action on the Safety of Journalists and the Issue of Impunity,
2012:
http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CI/CI/pdf/official_do
cuments/UN_plan_on_Safety_Journalists_EN.pdf

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BRIEFING NOTE 6: PRINT MEDIA

BRIEFING NOTE 6
Print Media
“A free press” Albert Camus once said, work automatically once certain technical
“can of course, be good or bad, but, mostly information has been provided.
certainly without freedom, the press will
never be anything but bad”. In contrast to Registration schemes should also not
the broadcast media, where historically impose substantive conditions on the
high entry barriers and limited spectrum media, not be excessively onerous and be
availability demands a robust regulatory administered by an independent oversight
framework to ensure content diversity, a body. In Gaweda v. Poland, the European
light regulatory touch is the best way to Court of Human Rights (ECHR) found
ensure an independent and diverse print that refusing to register a publication on
media sector. the basis that its name was “inconsistent
with the real state of affairs” (a requirement
in the Polish legislation) was an illegitimate
Licensing and Registration interference with freedom of expression.
Requirements The one exception to this might be where
Under international law, it is illegitimate to the proposed name of a publication was
require newspapers, or other publications, already being used by someone else.
to apply for a licence in order to operate.
These schemes fail the ‘necessity’ Even with these conditions, there is
component of the three-part test. Although disagreement as to whether or not
licensing schemes will prevent certain registration schemes are necessary. As the
potential problems, such as defamatory or special international mandates on freedom
obscene speech, the three-part test requires of expression stated in their 2003 Joint
States to create a regulatory framework Declaration:
which is minimally harmful to freedom of
expression. Refusing or cancelling a Imposing special registration
licence, a form of prior censorship, is an requirements on the print media is
extreme interference with that right and far unnecessary and may be abused
less intrusive means for addressing and should be avoided. Registration
problematic content are available. systems which allow for discretion
to refuse registration, which impose
Registration schemes, which only require substantive conditions on the print
publishers to provide certain technical media or which are overseen by
information, such as the names of a bodies which are not independent
publication’s owner(s), are less intrusive of government are particularly
but should still be imposed with caution. It problematical.
is important that the registering body does
not have any discretion to deny or refuse
registration. Rather than applying for Complaints Systems
permission, a registration scheme should
Although a free and unfettered press is of
core importance to a democratic system,

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 BRIEFING NOTE 6: PRINT MEDIA

there is a legitimate need to promote members appointed exclusively by media

professionalism in the media and to owners and journalists. As long as these
provide the public with some sort of bodies operate independently from
redress when minimum standards are not government, and are staffed by persons
met. The pressure surrounding with appropriate expertise in media issues,
competition for stories and audience share, they are also a legitimate form of
for example, can promote unprofessional regulation. The imposition of purely
behaviour. The need for a system of redress statutory regulation on the print media,
against unprofessional media behaviour is which does not count on the active
of particular importance in emerging involvement of media representatives, is
democracies or post-revolutionary problematical from a freedom of
contexts, where the media may be finding expression perspective.
its footing after a prolonged period of
repressive government. Moving from a Self-regulatory schemes are voluntary and
system of near-total control to one which is so lack binding enforcement powers
largely free presents serious challenges. beyond requiring an offending media
Media outlets may lack a proper editorial outlet to print the council’s finding of a
structure, or other institutional expertise, journalistic breach or to carry a right of
to responsibly guide their conduct. reply. Even co-regulatory systems rarely
have powers that go beyond this.
Most systems of redress consist of an Nonetheless, the fact that press councils are
oversight body – such as a press council – staffed by media experts and work in
and a set of minimum standards – such as a dialogue with the media accords them
code of conduct. In terms of the oversight significant moral authority, generating
body, there is significant potential for strong professional pressure among the
abuse where the government plays a role in media to operate in line with their
handling complaints against the press. In standards.
other words, as in other regulatory
contexts, the need for independence is key. The mandate of press councils varies from
Ideally, the print media will come together country to country. In many countries, in
to create its own, self-regulatory system. In addition to hearing and resolving
order to avoid being too close or biased complaints, these bodies play a positive
towards the press, better practice is for the role in promoting press freedom and
press council to be composed of members professionalism, for example by making
of the media along with members of the recommendations on draft legislation and
public. Practice varies regarding the code, other rules affecting the media and by
which may be produced exclusively by producing guidelines on better journalistic
media experts – for example by editors – or practices.
which may be produced in a more broadly
consultative fashion.
Right of Reply/Correction
Another approach is a co-regulatory
The benefits of a right of reply, whereby the
system, which involves a statutory body in
claimant has a right to insert a reply in a
which the media play a significant, though
media outlet in response to a story or
not necessarily dominant, role. For
report, have been the subject of some
example, the Indonesia Press Council
debate. Because freedom of expression
(IPC) is established by law but has its
includes a right not to speak, there is no

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BRIEFING NOTE 6: PRINT MEDIA

question that enforcing a right of reply recognised, a request for a reply may be
represents an interference. While some see refused in the following cases:
it as a legitimate mechanism that uses a
‘more speech’ approach to addressing i. If the request for publication of the reply
problematical speech and that ensures the is not addressed within a reasonably
public will hear both sides of the story, short time;
others see it as an unjustifiable restriction ii. If the length of the reply exceeds what is
on editorial freedom. necessary to correct the information
containing the allegedly inaccurate facts;
The right of reply is specifically recognised iii. If the reply is not limited to a correction
by Article 14 of the American Convention of the challenged facts;
on Human Rights and by the Council of iv. If the reply constitutes a punishable
Europe in its Resolution (74)26. The offence;
ECHR, in Kaperzyński v. Poland, held that v. If the reply is considered contrary to a
a right of reply was justifiable under the third party’s legally protected interests;
European human rights framework, vi. If the individual concerned is unable to
although they ruled that the penal show the existence of a legitimate
sanctions imposed in that case were overly interest.
harsh. In the United States, on the other
hand, a mandatory right of reply for the International law has not given much
print media has been struck down on the attention to the relationship between a right
grounds that it is an unconstitutional of reply and a right of correction. However,
interference with the First Amendment it is clear that a right of correction
(see Miami Herald Publishing Co. v. represents less of an intrusion into editorial
Tornillo). freedom than a right of reply. Therefore, in
situations where it can adequately address a
Further guidance on the appropriate problem, such as a direct factual error as
application of this right is found in the opposed to more directed criticism, a right
Council of Europe Resolution (74)26 which of correction should be the preferred
recommends that while the right should be remedy.

FURTHER READING
!
• Andrew Puddephatt, The Importance of Self Regulation of the Media in Upholding
freedom of expression, 2011, UNESCO:
http://unesdoc.unesco.org/images/0019/001916/191624e.pdf

• ARTICLE 19, Statement on the Draft Slovak Act on Periodic Press and News
Agencies, 2008: http://www.article19.org/data/files/pdfs/analysis/slovakia-press-
leg-st.pdf

• Centre for Law and Democracy and SEAPA, Myanmar: Guidance for Journalists
on Promoting an Empowering Press Law, 2012: http://www.law-
democracy.org/live/myanmar-guidance-on-an-empowering-press-law/

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 BRIEFING NOTE 7: BROADCAST REGULATION

BRIEFING NOTE 7
Broadcast Regulation
Democracies impose more stringent providers, and safety and security services.
regulatory regimes on broadcasting than In many countries, combined broadcast-
on other forms of media. This is because, telecommunications regulators are
unlike print media, broadcast signals have responsible for a wide range of frequency
traditionally been distributed through a uses, while technological convergence has
limited public resource, the radio meant that more and more countries are
frequency spectrum, which limits the moving to this model.
number of stations which can operate in
any particular geographic location. The two main areas of broadcast regulation
Without regulatory intervention in are in relation to licensing and regulation
assigning frequencies to broadcasters, of content.
chaos would reign and interference would
render the entire system unworkable. The
limited nature of the broadcast spectrum,
Licensing
and the resulting limits on the number of In democracies, the process of licensing
broadcasters, also justifies regulatory broadcasters is overseen by a specialised,
interventions to support diversity of independent regulatory body. As discussed
content. Modern technologies are starting in Briefing Note 4, according to
to change this. Cable, satellite and digital international standards this body should
dissemination platforms have significantly be independent of both government and
reduced the pressure on the frequency commercial players. Licensing should
spectrum, while not doing away entirely promote the overall public interest rather
with limits. In due course, however, the than the interests of any particular
Internet will essentially defeat scarcity. At government or private actor.
the same time, there are other reasons to Independence is particularly important if
regulate broadcasters, including the one of the primary goals of licence
intrusive and influential nature of regulation, namely promoting diversity in
broadcasting, as well as its accessibility, the airwaves, is to be achieved.
including to children. Independent regulation also promotes
investment in the broadcasting sector since
Frequency planning is an important way of businesses can be confident that licences
ensuring that the allocation of frequencies will be awarded based on merit.
to broadcasters takes place on a planned
basis and in a manner that allows for the The licensing process should also be
promotion of a diverse range of carried out in a democratic manner and, in
programming in line with the public particular, it should be fair and
interest, rather than simply allocating transparent. The importance of achieving
frequencies to the first or highest bidder. these goals has been outlined by the UN
Frequency planning requires coordination Human Rights Committee (UNHRC) in its
among different frequency users: General Comment No. 34:
broadcasters, telecommunications service

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BRIEFING NOTE 7: BROADCAST REGULATION

States parties must avoid imposing financial resources and making a

onerous licensing conditions and contribution to diversity, should be
fees on the broadcast media, spelled out clearly in the rules.
including on community and
commercial stations. The criteria In most democracies, broadcasters are
for the application of such required to treat matters of public
conditions and licence fees should controversy with due balance and
be reasonable and objective, clear, impartiality, which essentially makes it
transparent, non-discriminatory unrealistic for broadcasters to be owned by
and otherwise in compliance with or even linked to a particular political
the Covenant. Licensing regimes party. However, although it is legitimate to
for broadcasting via media with prohibit political parties from holding
limited capacity, such as broadcast licences, other blanket
audiovisual terrestrial and satellite prohibitions on the form or nature of
services should provide for an applicants generally represent a breach of
equitable allocation of access and the right to freedom of expression.
frequencies between public,
commercial and community Broadcast licences are normally awarded
broadcasters. subject to certain terms and conditions,
including with a view to promoting
Part of this is to allow everyone to have an diversity and fairness in the system.
equal opportunity to obtain a licence. The Because they represent restrictions on
process for making applications should be freedom of expression, these conditions
set out clearly and precisely in law. A need to be justified according to the three-
framework of rules should be provided for part test outlined in Briefing Note 2.
in the primary legislation, with more detail Conditions may be general or specific to
specified in subordinate regulations, the licensee. General conditions may
including specific calls for tenders or include technical criteria (which would
applications. The framework should at normally apply to a class of licences), rules
least include the following features: on copyright and licence duration and
positive obligations, such as to carry a
• Straightforward timelines for each step minimum quota of domestic or regional
of the process (such as deadlines for programming. Specific conditions may
filing applications, and the length of apply to individual licences, and examples
time it will take for a decision to be might be a requirement for a licensee to
made). carry a minimum quota of news or
• A detailed explanation of the process children’s programming.
and a requirement for the regulator to
justify any refusals in writing.
• Applicants should have a right to a
Regulation of Content
judicial appeal against any refusals to Unlike the print media sector, content
issue a licence. regulation for broadcasters is rarely
• The rules should include a clear undertaken on a purely self-regulatory
framework or schedule of any charges basis and, instead, co-regulatory or
and fees. statutory models are more common. Some
• The criteria by which applications will countries relying on a co-regulatory model
be assessed, such as technical expertise, leave content regulation up to an industry

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(or self-regulatory) body, but make it a often private broadcasters, to carry

licence condition that the broadcaster programming which produced by
belongs to that body (so that it must obey independent producers (i.e. producers who
the decisions of the body or risk losing its are not connected to any institutional
membership and hence licence). broadcasting station). Requiring
Regardless of which model is in place, the broadcasters to carry independent
need for independence is particularly productions broadens the production base,
imperative in relation to content leading to a more intense competition of
regulation, given the high risk of political ideas and innovation in the sector and, as a
interference. result, greater content diversity. This also
helps to foster content producing
To ensure that the public has access to a industries. It is common for public
range of different types of programming, broadcasters to be subject to higher
many countries impose certain positive independent production quotas.
content obligations on broadcasters. One
common example is to require In most democracies, broadcasters are also
broadcasters to carry a certain amount of subject to certain negative or minimum
domestic programming. The rationale professional requirements. As for the print
behind this is to counteract commercial sector, this normally means that they are
incentives to purchase content from required to respect the standards set out in
abroad, which is often cheaper and easier a code of conduct developed through the
than producing original programmes. co-regulatory or statutory regulation
Absent such requirements, the overall system. These codes address a range of
presence of local voices in the all- programming issues, such as accuracy,
important broadcasting sector might be privacy, protection of children and the
limited. Local content requirements also treatment of sensitive themes such as sex
help to ensure that local culture is and violence. Again as in the print media
protected and promoted through sector, these codes often form the basis of a
broadcasting. complaints system. Unlike the print media
sector, however, these codes are often also
In many countries, national broadcasters used as the basis of direct monitoring by an
are also required to carry a certain oversight body and the sanctions applied
minimum percentage of local for breach of the rules range from light
programming. Once again, this is to remedies (such as warnings or
counteract commercial imperatives, since requirements to issue a correction) to more
it is more expensive to produce different serious remedies (such as fines and even
local programmes for different areas than the possibility of licence revocation).
to provide unified national programming.
There is clearly a public interest in
ensuring that audiences have access to
news about local, in addition to national,
events.

Another requirement which is less

common but still applied in many
countries is to require broadcasters,
especially public broadcasters but also

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BRIEFING NOTE 7: BROADCAST REGULATION

FURTHER READING
!
• ARTICLE 19, Access to the Airwaves: Principles on Freedom of Expression and
Broadcast Regulation, 2002:
http://www.article19.org/data/files/pdfs/standards/accessairwaves.pdf

• Eve Salomon, Guidelines for Broadcasting Regulation, Commonwealth

Broadcasting Association, 2008: http://www.cba.org.uk/wp-
content/uploads/2012/04/RegulatoryGuidelines.pdf

• International Telecommunication Union, Guidelines for the transition from

analogue to digital broadcasting, 2014: http://www.itu.int/en/ITU-D/Spectrum-
Broadcasting/Documents/Guidelines%20final.pdf

• Toby Mendel and Eve Salomon, The Regulatory Environment for Broadcasting: An
International Best Practice Survey for Brazilian Stakeholders, UNESCO, 2011:
http://unesdoc.unesco.org/images/0019/001916/191622e.pdf

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 BRIEFING NOTE 8: MEDIA DIVERSITY

BRIEFING NOTE 8
Media Diversity
Although the right to freedom of States’ positive obligation to promote
expression operates primarily as a diversity includes making sure that all
restriction on State action, the right also different types of media, and in particular
imposes positive obligations on States to all three types of broadcaster – namely
establish an environment which promotes public, commercial and community
the free flow of information and ideas in broadcasters – are able to operate.
society. A key element of this is the idea of
media diversity, which broadly means that Commercial broadcasters, driven in part
the media provides voice opportunities to by a profit motive, contribute to diversity
and satisfies the information needs of all by bringing much needed resources as well
stakeholders. In Informationsverein Lentia as the innovation and choice that are
and Others v. Austria, the European Court driven by competitive impulses. For
of Human Rights (ECHR) stressed the commercial broadcasters, in line with their
importance of media diversity: competitive orientation, a key requirement
is that the licensing process should be fair,
[T]he fundamental role of freedom transparent and competitive.
of expression in a democratic
society, in particular where, Public service broadcasters, by contrast,
through the press, it serves to are not normally primarily driven only by
impart information and ideas of competition, and especially not
general interest, which the public is competition for resources, since they
moreover entitled to receive. Such typically receive State-funding (see Briefing
an undertaking cannot be Note 9). They contribute to diversity
successfully accomplished unless it through their public service mandates,
is grounded in the principle of which often include references to quality
pluralism, of which the State is the and satisfying voice and information needs
ultimate guarantor. of citizens that may be overlooked by
commercial players. A key obligation in
Diversity is complex and is often terms of public service broadcasters is to
understood to encompass three different create them, in the first place, to respect
elements: diversity of outlet (meaning their independence and to ensure that they
different types of media), diversity of have sufficient resources to be able to fulfil
source (meaning diverse ownership of the their public service mandates.
media), and diversity of content (which
refers to media output). Community broadcasting is defined
broadly as non-profit broadcasting that is
provided by and for the members of a
Diversity of Outlet particularly community, whether a
International law requires States to geographical community or a community
guarantee freedom of expression “through of interest. These broadcasters also make
any medium” (see Briefing Note 1). Part of an important contribution to diversity,

!
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BRIEFING NOTE 8: MEDIA DIVERSITY

providing voice opportunities to limits the ability of certain interests to

communities which may be neglected or express their opinions and be heard. By the
largely neglected by commercial and even same token, it gives large-scale owners
public service broadcasters. disproportionate access to voice, allowing
their views and perspectives to dominate.
A number of conditions are necessary for Undue concentration of ownership can
the community broadcasting sector to be also lead to free market or competitive
able to thrive. Community broadcasters problems, such as higher prices for
cannot normally compete openly with consumers or reduced incentives to
commercial broadcasters in licensing produce resource-intensive or small-scale
processes because they have far fewer programming, such as investigative or
human, technical and financial resources. local reporting. Large media
As a result, it is necessary to put in place conglomerates may also be able to engage
special, light, licensing processes for in anti-competitive practices in relation to
community broadcasters, along with much advertising, further exacerbating the
lower, or even free, tariff schedules. problem.

It is also necessary to make special The importance of preventing excessive

arrangements to ensure that community concentration of ownership in the media
broadcasters can disseminate their signals sector has been confirmed by a number of
through existing broadcasting platforms. international actors. In their 2007 Joint
In the analogue broadcasting environment, Declaration, the special international
this means protecting a part of the mandates on freedom of expression stated:
frequency spectrum, through a frequency
plan (see Briefing Note 7), for community In recognition of the particular
broadcasters. There are different ways to importance of media diversity to
do this. Some countries, including France, democracy, special measures,
Thailand and the United States, allocate a including anti-monopoly rules,
fixed percentage of certain frequency should be put in place to prevent
bands to community broadcasting; in each undue concentration of media or
of those countries, 20 per cent of the FM cross-media ownership, both
band is allocated to community or non- horizontal and vertical.
profit broadcasting. In other countries, the
allocation is left up to the broadcast The Declaration of Principles on Freedom
regulator, sometimes with a legal of Expression in Africa states:
requirement that the allocation of
frequencies among the different types of States should adopt effective
broadcasters be equitable. measures to avoid undue
concentration of media ownership,
although such measures shall not
Diversity of Source be so stringent that they inhibit the
The concentration of media ownership in development of the media sector as
the hands of a small number of players is a a whole.
threat not only to freedom of expression
but to democracy itself. Undue media The specific rules will depend on the
concentration reduces the diversity of specific market to which they apply; clearly
viewpoints that citizens are exposed to and larger markets in larger countries will need

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 BRIEFING NOTE 8: MEDIA DIVERSITY

different solutions than tiny island States. than two FM or AM radio licences or two
While restrictions on undue concentration stations with substantially overlapping
of media ownership are important, policy service areas. Similarly, no one who
makers should also take into account the controls a newspaper may also control
need to foster development in the both a television and a radio licence.
broadcasting sector; the rules should not
be so strict as to undermine the economic
viability of the sector.
Diversity of Content
There are a number of ways in which
As an example of specific rules, in Canada, States can provide direct support for
the regulator will not allow a transaction diverse content (i.e. in addition to the
that gives a single entity control of more more indirect measures outlined above).
than 45 per cent of the television market These include setting up funds to support
and it will scrutinise very carefully the production of public interest content,
transactions that result in a 35-45 per cent community broadcasters and/or other
share, while in Italy, a newspaper publisher media sectors that are at risk. Systems to
may not control more than 20 per cent of provide financial support for community
total circulation at the national level and broadcasters are common in democracies,
no more than 50 per cent at the regional and many countries also have funds to
level. In the United States, there are very support newspapers which are struggling.
detailed and precise rules on concentration
of ownership and cross-ownership within States can also impose direct, positive
the media sector. Laws can also apply to content obligations on broadcasters, for
cross-media ownership. In South Africa, example to include a minimum percentage
no one may control, directly or indirectly, of domestic or local content among their
more than one television licence, or more programming (see Briefing Note 7).

FURTHER READING
!
• Centre for Law and Democracy, Tuning into Development: International
Comparative Survey of Community Broadcasting Regulation, 2013:
http://www.law-democracy.org/live/unesco-community-radio-book-published/

• Organization of American States, Annual Report of the Special Rapporteur for

Freedom of Expression, 2004:
http://www.oas.org/en/iachr/expression/showarticle.asp?artID=459&IlD=1

• UNESCO, Media Development Indicators: A Framework for Assessing Media

Development, 2008: http://unesdoc.unesco.org/images/0016/001631/163102e.pdf

!
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BRIEFING NOTE 9: PUBLIC SERVICE BROADCASTING

BRIEFING NOTE 9
Public Service Broadcasting
Public service broadcasters (PSBs) play a vital PSBs are normally expected to provide
role in the media landscape. They can serve as programming both of broad appeal and of
a source of diverse and high-quality interest to specialised audiences, often with a
programming, particularly in ways which a focus on traditionally neglected areas such as
pure market approach would not necessarily educational programming and programming
support. PSBs can also serve to foster national directed at minorities. It is also common for
identity within a framework of respect for PSBs to be required to ensure that their
minorities, and to promote socially inclusive signals reach as large a portion of the
and human rights respecting values. In a rich population as possible, which is natural given
media landscape, PSBs can often set the tone, that they are publicly funded.
spurring their counterparts in the
commercial sector to produce higher quality
and more sophisticated programming.
Independence
If PSBs are not protected against
government interference, i.e. if they are not
Mandate independent, they cannot effectively fulfil
PSBs serve the public interest by their public service mandates. The
complementing and extending the importance of this has been eloquently
programming offered by commercial described by the Supreme Court of Ghana
broadcasters, thereby enhancing diversity in New Patriotic Party v. Ghana
in the media. To ensure that PSBs meet Broadcasting Corp.:
programming needs that are responsive to
the public interest and to ensure [T]he state-owned media are
accountability in terms of programming, it national assets: they belong to the
is important to set out a clear public entire community, not to the
service mandate in law and/or regulation abstraction known as the state; nor
for public broadcasters. This should be to the government in office, or to
relatively detailed, without unduly binding its party. If such national assets
the hands of public broadcasters. were to become the mouth-piece of
any one or combination of the
The precise mandate will vary from parties vying for power, democracy
country to country but a number of would be no more than a sham.
features are found in most countries.
Comprehensive news and current affairs The need for independence among PSBs
programming is a hallmark of PSB, and it also flows from international guarantees of
is important that this be accurate, impartial the right to freedom of expression, as
and balanced. In most cases, PSBs cover reflected in the following statement by the
the proceedings of key decision-making UN Human Rights Committee (UNHRC)
bodies, most importantly the legislature, in its General Comment No. 34:
and provide in-depth coverage of
developments at the national but also the States parties should ensure that
international and local levels. public broadcasting services operate

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 BRIEFING NOTE 9: PUBLIC SERVICE BROADCASTING

in an independent manner. In this government interference, since those who

regard, States parties should guarantee would seek to influence the broadcaster
their independence and editorial must pass through both the board and then
freedom. They should provide the editorial team.
funding in a manner that does not
undermine their independence.
Funding
Numerous Declarations adopted under the To properly fulfil their mandate, which
guidance of UNESCO also note the normally includes delivering outputs over
importance of independent public service and beyond what is expected from
broadcasters, while the 2010 Joint commercial broadcasters, PSBs need to
Declaration of the special international benefit from some form of public funding. At
mandates on freedom of expression the same time, this funding must be provided
expressed concern about public in a way that is insulated from government
broadcasters being subject to political control, as part of the system of protecting
“influence or control” which results in the independence of PSBs.
them serving “as government mouthpieces
instead of as independent bodies operating Good practice in this area is to provide
in the public interest”. funding via an established licence or other
fee, rather than directly from the government
In practical terms, protecting the budget. In some countries, PSBs are funded
independence of broadcasters can be through a mandatory levy paid by all
achieved in many of the same ways as households which have a radio or television
promoting the independence of broadcast set. While this has the benefit of providing
regulators (see Briefing Note 7). In consistent levels of funding over time and is
particular, it is very important to ensure relatively insulated from government
that they are overseen by governing boards interference, it can be difficult and/or
and that the way in which members are expensive to collect these fees. An alternative
appointed to these bodies ensures their is to levy the fee alongside some other
independence. centrally collected fee, such as the electricity
bill, which minimises collection costs. There
An additional level of protection is common are also some innovative approaches here,
for PSBs through what is known as editorial such as Thailand, which funds PSB through a
independence, which refers to the idea that tax on liquor and tobacco.
editorial decisions should be made by
professional staff (editors) instead of the In many countries, PSBs rely on a mixed
governing board. This can be achieved by funding model, whereby some of their
ensuring a clear separation between the funding is provided from public sources
governing body (which has overall and some from commercial activities,
responsibility for the organisation) and including advertising. Recommendation
managers and editors (who are responsible 1878 (2009) of the Parliamentary Assembly
for day-to-day decision-making). The of the Council of Europe refers to the
governing body should oversee the work and following possible sources of funding:
report to the government, while the
professional staff should manage the The funding of public service media may
organisation’s operations. This can operate be ensured, through a flat broadcasting
as a sort of dual layer of protection against licence fee, taxation, state subsidies,

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BRIEFING NOTE 9: PUBLIC SERVICE BROADCASTING

subscription fees, advertising and important public resource.

sponsoring revenue, specialised pay-per-
view or on-demand services, the sale of Better practice here is for PSBs to be
related products such as books, videos or accountable to parliament, rather than
films, and the exploitation of their directly to government. This is achieved,
audiovisual archives. for example, by requiring PSBs to submit
annual reports, along with externally
While a mixed funding model provides more audited accounts, to the legislature for its
resources for PSBs and can also help enhance review. This can be supplemented by more
their independence, excessive reliance on direct forms of public accountability, such
commercial sources of funding can start to as an obligation to hold public meetings,
erode the lines between PSBs and commercial conduct surveys and provide other means
broadcasting. In the end, if the public wants by which the public can provide direct
PSBs to provide additional services to what is feedback to the public broadcaster. PSBs
available via commercial broadcasting, an should also be subject to the right to
appropriate measure of public funding must information law, so that members of the
be provided to achieve this. public can obtain information on request
from PSBs, subject to legitimate exceptions
(see Briefing Note 3). Another type of
Accountability direct accountability is to require PSBs to
Independence from government does not adopt codes of conduct regarding their
mean that PSBs should not be accountable, behaviour and programming, and to put in
ultimately to the people. This flows both place systems whereby members of the
from the fact that they receive public public can complain about breaches of the
funding and from the fact that they code.
perform a public service and are an

FURTHER READING
!
• ARTICLE 19, A Model Public Service Broadcasting Law, 2005:
http://www.article19.org/data/files/pdfs/standards/modelpsblaw.pdf
!
• Democratic Governance Group of United Nations Development Programme
Bureau for Development Policy, Supporting Public Broadcasting: Learning from
Bosnia and Herzegovina’s Experience, 2004:
http://www.undp.org/content/dam/aplaws/publication/en/publications/democrat
ic-governance/oslo-governance-center/ogc-fellowship-papers/supporting-public-
service-broadcasting-learning-from-bosnia-and-herzegovinas-
experience/PublicServiceBroadcasting.pdf
!
• Toby Mendel, Public Service Broadcasting: A Comparative Legal Survey,
UNESCO, 2011:
http://unesdoc.unesco.org/images/0019/001924/192459e.pdf!
!

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 BRIEFING NOTE 10: CRIMINAL CONTENT RESTRICTIONS

BRIEFING NOTE 10
Criminal Content Restrictions
Freedom of expression is a foundational A key problem with national security is the
human right, but it is universally difficulty of defining it clearly, and the
recognised that certain types of speech can tendency of both laws and decision-makers
be harmful and that some speech is so in many countries to define it far too
harmful that it should be criminally broadly. There is no clear definition of
prohibited. Due to the severe nature of what constitutes ‘national security’ and
criminal prohibitions, however, extreme even the Global Principles on National
care must be taken to ensure that these Security and the Right to Information
restrictions are not applied in a manner (Tshwane Principles), the leading
which unduly restricts freedom of international statement in this area,
expression. Common problems with eschewed definition. However, Principle 9
criminal restrictions on speech are that of the Tshwane Principles provides a list of
they are drafted in unduly vague terms or categories of information that might
that they are overbroad in application. legitimately be withheld on grounds of
national security, giving a good indication
of the scope of the concept. The list
National Security and Public includes such items as “defence plans,
Order operations, and capabilities”, “production,
National security and public order are capabilities, or use of weapons systems”,
interests of the highest order and, when “measures to safeguard the territory of the
either is truly at risk, all human rights, and state, critical infrastructure, or critical
even democracy itself, may be at risk. It is national institutions”, “the operations,
thus accepted that, in appropriate sources, and methods of intelligence
circumstances, freedom of expression may services”, and national security
be restricted to protect these two interests, information provided by a foreign State.
and this is mentioned explicitly in Article
19(3) of the International Covenant on It is clear from this that restrictions based
Civil and Political Rights (ICCPR). on localised violence or ordinary criminal
However, it is easy to succumb to the activities are not justifiable on the basis of
temptation to unduly limit free speech in national security. Instead, the threat must
the name of security, a risk that has relate to defence capabilities such as
emerged all the more strongly in the weapons or intelligence to qualify.
aftermath of the attacks of 11 September
2001 and the subsequent growth in global In order to prevent abuse of national
terrorism and other national security security and public order rules,
threats. As Benjamin Franklin once international courts have applied three
famously said, “People willing to trade main principles. First, they have insisted
their freedom for temporary security that these concepts be defined
deserve neither and will lose both”. appropriately narrowly. For example, in its
2011 General Comment No. 34, the UN

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Human Rights Committee (UNHRC)

stated: Together, these constraints help prevent
States from abusing concerns about threats
Such offences as “encouragement to national security to unduly restrict
of terrorism” and “extremist freedom of expression.
activity” as well as offences of
“praising”, “glorifying”, or
“justifying” terrorism, should be
Hate Speech
clearly defined to ensure that they Drawing the line between ideas and
do not lead to unnecessary or opinions that are offensive but protected
disproportionate interference with under the right to freedom of expression
freedom of expression. Excessive and hate speech is difficult and often
restrictions on access to controversial. However, the dangers of
information must also be avoided. hate speech are recognised in Article 20(2)
The media plays a crucial role in of the ICCPR, which is the only provision
informing the public about acts of in the ICCPR that actually requires States
terrorism and its capacity to to prohibit certain speech, specifically,
operate should not be unduly “advocacy of national, racial or religious
restricted. In this regard, hatred that constitutes incitement to
journalists should not be penalized discrimination, hostility or violence”.
for carrying out their legitimate
activities. It is clear that restrictions pursuant to
Second, they have insisted on a clear intent Article 20(2) must still meet the three-part
requirement for the threat to national test imposed by Article 19(3). As the
security or public order. For example, the UNHRC said in General Comment No. 34:
Johannesburg Principles on National
Security, Freedom of Expression and Access The acts that are addressed in
to Information, a precursor to the Tshwane article 20 are all subject to
Principles, state that expression may be restriction pursuant to article 19,
punished as a threat to national security paragraph 3. As such, a limitation
only if the State can demonstrate that “the that is justified on the basis of
expression is intended to incite imminent article 20 must also comply with
violence”. article 19, paragraph 3.

Third, they have insisted on a very close Article 20(2) is understood to incorporate
nexus between the expression and the risk four key elements for speech to qualify as
of harm. This is illustrated in Principle hate speech: intent, incitement, to the
XIII(2) of the Declaration of Principles on proscribed results, and based on the listed
Freedom of Expression in Africa: grounds. The first condition means that
only speech which is intended to incite to
Freedom of expression should not one of the proscribed results should qualify
be restricted on public order or as hate speech. This has been clearly
national security grounds unless reaffirmed by international courts, such as
there is a real risk of harm to a the European Court of Human Rights
legitimate interest and there is a (ECHR) in the case of Jersild v. Denmark.
close causal link between the risk of In that case, the speech, by a journalist, was
harm and the expression. intended to expose the existence of a racist

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subculture. It was, as a result, not based on their race or religion might cross
considered to be hate speech and the the line.
restrictions imposed by Denmark were a
breach of the applicant’s right to freedom A number of additional conditions for hate
of expression. speech legislation were set out in a 2001
Joint Statement by the special international
The second condition, incitement, means mandates on freedom of expression:
that there has to be a close and direct
causal relationship between a statement • no one should be penalised for
and the proscribed result before the statements which are true;
statement may legitimately be prohibited. • no one should be penalised for the
Where a statement actually leads to one of dissemination of hate speech unless it
the proscribed results, this is obviously a has been shown that they did so with
clear indication, but it is always possible the intention of inciting discrimination,
that other factors were responsible. hostility or violence;
Context is very important here. Statements • the right of journalists to decide how
which may be unlikely to create hatred in a best to communicate information and
peaceful context may do so in a more ideas to the public should be respected,
unstable environment. particularly when they are reporting on
racism and intolerance;
Third, the statement must incite to one of • no one should be subject to prior
the proscribed results. These include censorship; and
violence, which is normally covered by • any imposition of sanctions by courts
more general prohibitions on incitement to should be in strict conformity with the
crime, and discrimination, which is itself principle of proportionality.
prohibited in many countries, but also
hatred, as a state of mind (i.e. an opinion,
which is itself actually protected under
Obscenity
international law). The rationale for this is Obscenity is a relatively unclear area in
that society should not have to wait until terms of restrictions on freedom of
hatred actually manifests itself in action expression under international law, in part
before providing protection to potential because while statements which are
victims. offensive to some people are protected,
States also have the power to limit freedom
Fourth, the statement must incite to hatred of expression in the interest of public
on the basis of nationality, race or religion, morals, subject to the three-part test (see
although this has been extended to other Briefing Note 2).
similar grounds, based on the idea of
historical disadvantage and immutability, Obscenity is also very difficult to define
such as ethnicity or sexual orientation, in and there is no universally applicable
some other contexts. However, speech standard. At the same time, the UNHRC
attacking political opponents on policy noted in General Comment No. 34 that
grounds, for example, could never qualify this notion cannot be used to impose
as hate speech. This also means that speech values derived from one tradition on
which targets ideas (however harshly or others:
unfairly) would normally be protected,
while speech which attacks individuals

!
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BRIEFING NOTE 10: CRIMINAL CONTENT RESTRICTIONS

The Committee observed in Covenant, except in the specific

general comment No. 22, that “the circumstances envisaged in article
concept of morals derives from 20, paragraph 2, of the Covenant.
many social, philosophical and
religious traditions; consequently, Consistently with this, a number of
limitations... for the purpose of established democracies have repealed
protecting morals must be based their blasphemy laws entirely while those
on principles not deriving that have kept them rarely enforce them.
exclusively from a single tradition”.
Any such limitations must be There are a number of problems with laws
understood in the light of which protect religious tenets and beliefs,
universality of human rights and as opposed to individuals. In a democracy,
the principle of non-discrimination differing ideas, including those relating to
religion, should compete through open
At the same time, both international and debate rather than fiat. This is particularly
domestic courts have often recognised that true where a religion has political
questions of morality are closely tied to influence, whether directly or indirectly. If
national and local cultures and traditions. a party’s platform includes
institutionalised religious ideas, it is clearly
undemocratic to insulate these ideas from
Blasphemy criticism or debate. Another problem with
The right to practice one’s religion is a blasphemy laws is that they are unable to
human right protected by Article 18 of the accommodate situations where religious
ICCPR and the UNHRC has made it clear beliefs are directly contradictory, such as
that this applies to atheistic as well as belief systems which believe in a single
theistic beliefs. The intersection of this deity or multiple deities or no deity. In
right with Article 19 (which protects addition, blasphemy laws are often
freedom of expression) and Article 20 discriminatory since they tend only to
(which requires States to prohibit hate protect the majority religion or only to be
speech) necessitates a careful balancing applied in that way. Indeed, in practice
around speech which relates to religious blasphemy laws are often used to repress
matters. religious minorities, dissenting believers or
atheists.
Blasphemy laws which go beyond
prohibiting the incitement to
discrimination, hostility or violence against
Administration of Justice
adherents to a particular religious belief It is well established under international
and apply to the denigration of that law that court hearings should be open to
religion’s beliefs or symbols are no longer the public. Article 14(1) of the ICCPR
regarded as legitimate under international states:
law. As the UNHRC stated in its 2011
General Comment No. 34: All persons shall be equal before
the courts and tribunals. In the
Prohibitions of displays of lack of determination of any criminal
respect for a religion or other belief charge against him, or of his rights
system, including blasphemy laws, and obligations in a suit at law,
are incompatible with the everyone shall be entitled to a fair

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and public hearing by a competent, such, must be subject to open public

independent and impartial tribunal scrutiny.” In R. v. Koptyo, the Ontario
established by law. The press and Court of Appeal noted eloquently the
the public may be excluded from reasons for this:
all or part of a trial for reasons of
morals, public order (ordre public) As a result of their importance the
or national security in a democratic courts are bound to be the subject
society, or when the interest of the of comment and criticism. Not all
private lives of the parties so will be sweetly reasoned. An
requires, or to the extent strictly unsuccessful litigant may well
necessary in the opinion of the make comments after the decision
court in special circumstances is rendered that are not felicitously
where publicity would prejudice worded. Some criticism may be
the interests of justice; but any well founded, some suggestions for
judgment rendered in a criminal change worth adopting. But the
case or in a suit at law shall be courts are not fragile flowers that
made public except where the will wither in the hot heat of
interest of juvenile persons controversy…. The courts have
otherwise requires or the functioned well and effectively in
proceedings concern matrimonial difficult times. They are well-
disputes or the guardianship of regarded in the community
children. because they merit respect. They
need not fear criticism nor need to
At the same time, it is of the greatest sustain unnecessary barriers to
importance to safeguard the authority and complaints about their operations
particularly the impartiality of the or decisions.
administration of justice. This may include
prohibiting certain kinds of expressions, Despite this, in many countries
such as lying to the court or intimidating unreasonably strict limits are posed on the
witnesses. While the media generally have criticism that may be directed towards
a right to report on legal cases, and indeed courts and judges. The only legitimate
there is a strong public interest in ensuring interest that could need protection here is
that the public are informed about ongoing the willingness of the public to continue to
developments, as Article 14(1) makes clear, use the courts as the ultimate arbiters of
there may be circumstances where media disputes, which is very rarely at risk.
reporting may be limited, for example to
protect the identity of children or victims.

The question of whether freedom of

expression may be restricted to safeguard
the authority of the judicial system is more
controversial. In their 2002 Joint
Declaration, the special international
mandates on freedom of expression stated:
“Special restrictions on commenting on
courts and judges cannot be justified; the
judiciary play a key public role and, as

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BRIEFING NOTE 10: CRIMINAL CONTENT RESTRICTIONS

FURTHER READING
!
• ARTICLE 19, The Camden Principles on Freedom of Expression and
Equality, 2009: http://www.article19.org/data/files/pdfs/standards/the-
camden-principles-on-freedom-of-expression-and-equality.pdf

• Amnesty International, Written contribution to the thematic discussion

on Racist Hate Speech and Freedom of Opinion and Expression organized
by the United Nations Committee on Elimination of Racial
Discrimination, 2012:
http://www.ohchr.org/Documents/HRBodies/CERD/Discussions/Racist
hatespeech/AmnestyInternational.pdf

• Open Society Foundations, Global Principles on National Security and

the Right to Information, 2013:
http://www.opensocietyfoundations.org/publications/global-principles-
national-security-and-freedom-information-tshwane-principles

• Toby Mendel, Study on International Standards Relating to Incitement to

Genocide or Racial Hatred, 2006:
http://www.concernedhistorians.org/content_files/file/TO/239.pdf

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 BRIEFING NOTE 11: CIVIL CONTENT RESTRICTIONS

BRIEFING NOTE 11
Civil Content Restrictions
Freedom of expression is not absolute and, Criminal defamation is not a
as Article 19 of the International Covenant justifiable restriction on freedom of
on Civil and Political Rights (ICCPR) expression; all criminal defamation
makes clear, it can legitimately be subject laws should be abolished and
to restrictions. However, these restrictions replaced, where necessary, with
must be carefully designed so as to meet appropriate civil defamation laws.
the three-part test for such restrictions set
out in Article 19(3) of the ICCPR (see In addition to the fact that criminal
Briefing Note 2). A number of civil law defamation laws are unnecessary, in
restrictions on freedom of expression are, practice they are often abused through
if crafted narrowly and with appropriate selective enforcement to protect the
exceptions, legitimate, of which the two reputations of police, public officials and
most important are defamation law and other powerful individuals who have close
privacy law. connections to the government.

In addition to being civil in nature,

Defamation defamation laws should incorporate a
The proper purpose of defamation laws is number of safeguards against abuse. They
to protect reputations, which is recognised should not be able to be invoked to protect
under international law as a legitimate abstract concepts, such as the State or
reason for restricting freedom of religious symbols, which do not have
expression. Rules on defamation should reputations as such, and for similar reasons
strike an appropriate balance between they should not protect abstract (i.e. non-
safeguarding the public, and in particular legally enshrined) groups, although an
political, discourse and providing adequate individual member of a group should be
protection to individuals targeted by false able to sue if they can demonstrate harm to
allegations. their own individual reputation.
Corporations should be allowed to sue for
A first step here is to limit defamation laws defamation in order to protect their often
to the civil as opposed to criminal law valuable reputation, but public bodies
sphere. Inasmuch as civil laws have proven should be prohibited from doing so due to
to be effective in protecting reputations, the overriding importance of open
including in the many countries which no criticism of public institutions in a
longer have criminal defamation laws on democracy. Also, by virtue of the fact that
the books, the more intrusive approach they represent the public, it is
represented by criminal laws cannot be problematical for public bodies to spend
justified. In their 2002 Joint Declaration, public funds bringing legal cases to defend
the special international mandates on themselves against criticism. Officials, as
freedom of expression stated: individuals, clearly have reputations which
they should still be able to protect through
defamation actions. However,

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BRIEFING NOTE 11: CIVIL CONTENT RESTRICTIONS

international courts have recognised that, Excessive sanctions, on their own,

as public figures, they must be prepared to represent a breach of the right to freedom
tolerate a greater degree of criticism than of expression, and this is particularly
ordinary citizens. relevant in the context of defamation,
where there has been a tendency for
Better practice is to limit the scope of damage awards to escalate in some
defamation laws to statements of fact, and countries. International law requires
not opinions, given the absolute protection penalties for defamation to be
under international law given to opinions proportionate to the harm done to the
and the fact that opinions are by definition plaintiff, keeping in mind that the objective
not susceptible of proof. Procedurally, of damages is to redress this harm and not
defendants should always be given an to punish the defendant. When imposing
opportunity to prove the truth of their pecuniary damages, courts should consider
statements of fact, while they should never the potential chilling effect that these may
be required to prove truth in the context of have on legitimate speech. Non-pecuniary
an opinion, which is clearly impossible. remedies, such as a right of correction or
reply, should generally be prioritised.
To ensure an appropriate balance between
free speech and protecting reputations,
defamation laws should incorporate a
Privacy
number of defences. Truth should always Like freedom of expression, privacy is a
be an absolute defence to a claim for human right, protected in Article 17(2) of
defamation, based on the idea that one the ICCPR. One of the main challenges
should only be able to defend a reputation with privacy is defining it clearly, a difficult
that one possesses (and if the statement is task which has generally been avoided by
true, one should not be able to hide it). courts. For example, in the case of
Even where defendants cannot prove the Niemietz v Germany, the European Court
truth of their statements, they should still of Human Rights (ECHR) stated: “The
benefit from a defence of “reasonable Court does not consider it possible or
publication”, absolving the defendant of necessary to attempt an exhaustive
liability if they can demonstrate that definition of the notion of ‘private life’.”
dissemination of their statements was
reasonable under all of the circumstances. It is generally agreed that privacy
This defence is particularly important for incorporates both objective and subjective
journalists, whose role of informing the elements. The former involves a
public would be seriously undermined if determination of whether or not there
they had to be absolutely certain of every exists a “reasonable expectation of
fact before they published a story. Finally, privacy”, while the latter depends on
the overriding importance of openness in whether, in fact, the individual involved
certain contexts – such as legislative and had an actual expectation of privacy, which
judicial proceedings – means that may depend on their personal values,
statements made before these bodies, along attitudes and, importantly, their behaviour.
with fair and accurate records of the
proceedings before them, should be Interpretation of these standards varies
protected against defamation liability. widely both between jurisdictions and in
the context of different cases. Courts in the
United States have identified four different

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 BRIEFING NOTE 11: CIVIL CONTENT RESTRICTIONS

types of privacy interests worthy of privacy, although this has been

protection: considerably less true in the context of the
right to information.
1) Unreasonable intrusion upon the
seclusion of another; The leading ECHR case on this issue, the
2) Appropriation of one’s name or second case of Von Hannover v. Germany,
likeness; involved a number of photos of Princess
3) Publicity which places one in a false Caroline of Monaco, focused mostly on the
light; and illness of the reigning Prince of Monaco,
4) Unreasonable publicity given to one’s Prince Rainier, and the way his family were
private life. looking after him during his illness. The
Court set out a number of principles to be
In many ways, privacy plays an important taken into account in balancing freedom of
role in facilitating freedom of expression, expression and the protection of privacy,
particularly in the context of including:
communications aimed at a limited
audience. This is also true in the context of • the extent to which the publication
online communications, where a sense of contributed to a matter of public
anonymity in certain forums has been interest;
credited with encouraging a freer and • the degree of fame of the person
franker discourse online. States should involved and the subject of the report;
refrain from establishing blanket or • the prior conduct of the persons
untargeted surveillance programmes of involved;
Internet communications and from • the content, form and consequences of
putting in place bulk data retention the publication; and
requirements for Internet or • the circumstances in which the photos were
telecommunications service providers. taken.
States should also refrain from interfering
with the functioning of online In general, the Court showed a wide degree
anonymisation software, such as Tor. of latitude to any expression, even photos,
which made a contribution to debate on a
At the same time, and in perhaps more matter of public interest.
high profile ways, privacy can come into
conflict with freedom of expression, for More generally, the ECHR has identified a
example where the media wish to publish number of factors to be considered when
stories which include references to private determining the level of public interest in a
matters. In these contexts, and also where particular matter. These include the prior
the right to information comes into conduct of the persons involved, the
conflict with privacy (i.e. where individuals content, form and consequences of the
make requests for information that is publication, the circumstances in which
deemed to be private), the accepted the alleged invasion of privacy took place
approach is to undertake a public interest and the nature of the privacy interest at
balancing, immunising the expression or stake. Individuals, such as celebrities, who
providing access to the information where voluntarily open their private lives to
this is in the overall public interest. In public scrutiny with a view to increasing
applying this test, courts have generally their public profile and ultimately their
favoured freedom of expression over financial wealth are considered to have

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voluntarily surrendered a measure of the it is perhaps natural that data protection

privacy to which they would otherwise be and privacy should be confused, but there
entitled. are important differences between them.
Data protection regimes apply to all
Data protection regimes, which aim to personally identifying data, which is much
limit the collection and processing of large broader than privacy. For example, one
amounts of personal data, are related to may post one’s email online to facilitate
but different from privacy protection. people making contact, but this does not
These rules originally arose in response to mean one wants that email to be sold and
the increasingly large amounts of data that traded as a commodity, resulting in a
public bodies were holding on individuals, barrage of unwanted email advertisements.
and the growing capacity of technology to
allow for the manipulation of that data.
Given their closely related subject matters,

FURTHER READING
!
• ARTICLE 19, Defining Defamation Principles on Freedom of Expression and
Protection of Reputation, 2000:
http://www.article19.org/data/files/pdfs/standards/definingdefamation.pdf
!
• Report of the Special Rapporteur on the promotion and protection of the right to
freedom of opinion and expression, 17 April 2013, UN Doc. A/HRC/23/40:
http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/Annual.aspx

• Toby Mendel, Andrew Puddephatt, Ben Wagner, Dixie Hawtin & Natalia Torres,
Global Survey on Internet Privacy and Freedom of Expression, UNESCO, 2012:
http://unesdoc.unesco.org/images/0021/002182/218273e.pdf
!

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 BRIEFING NOTE 12: DIGITAL RIGHTS

BRIEFING NOTE 12
Digital Rights
In the decades since its inception, the developing world averages 31 per cent. In
Internet and other digital technologies addition to this global digital divide, many
have revolutionised the global expressive States experience an internal divide
landscape and become key delivery between wealthy, urban residents and
mechanisms for a range of other social poorer, rural ones.
benefits, including the protection of
human rights. These benefits are so There are a number of ways in which
important that there is a growing opinion States can and should promote greater
that access to the Internet should itself be Internet penetration, especially where
considered a human right. It is clear that markets cannot be expected to do this,
the use of the Internet as an expressive including for poorer people and ‘last mile’
medium is protected as part of the right to rural areas. Regulatory mechanisms –
freedom of expression. The importance of which could include pricing regimes,
online communications has been universal service requirements and
repeatedly recognised, including in the licensing agreements – can help foster
2011 Joint Declaration of the special greater access to the Internet. For example,
international mandates for freedom of some countries require Internet access
expression, which stressed “the service providers to charge equal rates in
transformative nature of the Internet in rural and urban areas, effectively
terms of giving voice to billions of people subsidising the rollout of rural broadband
around the world, of significantly through the more profitable urban
enhancing their ability to access connections. This process can be further
information and of enhancing pluralism assisted through the provision of public
and reporting”. financial support. Establishing ICT centres
and public access points, and raising
In their 2011 Joint Declaration, the special Internet awareness or literacy are other
international mandates for freedom of ways to expand access.
expression made it clear that States should
promote universal access to the Internet, The rise of the Internet has been
stating: “Giving effect to the right to accompanied by legal challenges both in
freedom of expression imposes an adapting existing legal regimes, such as
obligation on States to promote universal defamation law, to the new
access to the Internet.” Although access to communications environment and in
the Internet has grown by leaps and developing new legal regimes to address
bounds over the last twenty years, the new class of digital crimes that has
providing universal and equal access emerged, such as online fraud and
remains a challenge. According to the cyberstalking, as well as to protect new
International Telecommunication Union opportunities, such as online commerce. It
(ITU), the developed world has an average is important to note that many online
Internet penetration rate of 77 per cent as crimes are not as new as they seem. Fraud,
of 2013, while Internet penetration in the for example, is already prohibited in fairly

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BRIEFING NOTE 12: DIGITAL RIGHTS

general terms in most countries. While requirements involved in getting online

enforcement techniques and definitions and partly due to the enormous and varied
may need to be updated, States should potential for added communicative value
avoid rushing to adopt new legislation that they can provide, for example by
absent clear evidence that the existing legal providing search facilities or social media
tools are insufficient. tools (like Facebook). In the offline world,
the limited range of intermediaries – such
While it is always important to consult on as publishers and broadcasters – were
the development of legislation which normally held to the same standards of
affects the right to freedom of expression, liability as primary authors. This is simply
this is perhaps particularly important in not possible in the online world, due to the
relation to the Internet, given its very different relationship between
complexity, technical sophistication and ‘authors’ and intermediaries (imagine if
rapidly evolving nature. Making sure that Google were legally responsible for every
the concerns of a range of stakeholders are defamatory statement that its search
taken into account can avoid clumsy and engine pointed to in a search). To address
technically ineffective rules, as well as laws this, international law mandates that
which prohibit innocuous or benign intermediaries should be shielded from
behaviours along with harmful ones. liability unless ordered to take material
Any restrictions which impact on freedom down.
of expression on the Internet must, as with
any communications medium, conform Many jurisdictions have adopted notice
with general human rights standards, and take-down rules which require
including the three-part test set out in intermediaries to take down material as
Article 19(3) of the International Covenant soon as they are notified that it might be
on Civil and Political Rights (ICCPR) (see problematical. This provides insufficient
Briefing Note 2). Simply transferring protection for online speech since it
regulatory regimes designed for other essentially grants a power of censorship or
contexts to the Internet can be very veto to anyone who issues such a notice.
problematical given how fundamentally Better practice is to require intermediaries
differently it operates. As the special to take material down only after being
international mandates for freedom of ordered to do so by an independent
expression noted in their 2011 Joint oversight body, such as a court or
Declaration: independent regulator and some
democracies have adopted stronger “safe
Approaches to regulation harbour” protections along these lines.
developed for other means of
communication – such as The Internet differs from earlier
telephony or broadcasting – cannot communication tools in its truly global
simply be transferred to the nature, with material uploaded anywhere
Internet but, rather, need to be being instantaneously available to users
specifically designed for it. anywhere. This gives rise to issues about
jurisdiction in legal cases relating to
A unique aspect of online communications Internet content. This has been a particular
is the significant role that private problem in relation to defamation, with
intermediaries play, partly due to the plaintiffs engaging in what has come to be
sophisticated technical and infrastructural known as libel tourism, whereby they seek

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a plaintiff friendly jurisdiction in which to undermines the ability of Internet users

bring cases. To address this, the special everywhere to communicate with people in
international mandates for freedom of China.
expression called for the following
approach in their 2011 Joint Declaration: Another important Internet issue is the
principle of net neutrality. At a minimum,
Jurisdiction in legal cases relating this rules out discrimination in the
to Internet content should be treatment of Internet traffic. As the special
restricted to States to which those international mandates noted in their 2011
cases have a real and substantial Joint Declaration: “There should be no
connection, normally because the discrimination in the treatment of Internet
author is established there, the data and traffic, based on the device,
content is uploaded there and/or content, author, origin and/or destination
the content is specifically directed of the content, service or application.” The
at that State. Private parties should question of differential charges for carriage
only be able to bring a case in a and receipt of material over the Internet is
given jurisdiction where they can more controversial. While some advocates
establish that they have suffered call for this to be prohibited, differential
substantial harm in that charging has already started to take root
jurisdiction (rule against ‘libel and it seems unlikely that it will disappear
tourism’). completely.
The rise of the Internet is posing a
Another unique feature of the Internet is significant challenge to the established
that it has enabled new, technologically system of protection of copyright and
based, control systems, such as filtering intellectual property. The Internet has
and blocking systems. While filtering facilitated a tremendous flowering of
systems can enhance the ability of end creativity and the birth of new art forms.
users to exercise control over the content However, it has also led to unprecedented
that comes across their desks, filtering or levels of copyright infringement, due to the
blocking systems imposed by the State ease with which digital files can be copied
represent an unjustifiable form of prior and shared. While the rights of artists to
censorship. In their most extreme forms – earn a living, including through digital
of which the most famous and pervasive is sales, should be safeguarded, States should
China’s “Great Firewall” although similar ensure that exceptions to copyright (such
systems are being explored or as fair use or fair dealing) are interpreted
implemented in several States, including broadly and in a manner that is
Russia, Ethiopia and Kazakhstan – these appropriately adapted to the digital era.
systems also pose a major structural threat They should also take care to avoid
to the nature of the Internet. China’s Great imposing overly harsh penalties for
Firewall not only limits the ability of infringement, in particular cutting off
Chinese people to use the Internet, it also access to the Internet.

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BRIEFING NOTE 12: DIGITAL RIGHTS

FURTHER READING
!
• Centre for Law and Democracy, A Truly World-Wide Web: Assessing the
Internet from the Perspective of Human Rights, 2012: http://www.law-
democracy.org/wp-content/uploads/2010/07/final-Internet.pdf

• International Telecommunication Union, ICT Facts and Figures, 2013:

http://www.itu.int/en/ITU-
D/Statistics/Documents/facts/ICTFactsFigures2013-e.pdf

• Special international mandates on freedom of expression, Joint

Declaration on Freedom of Expression and the Internet, 2011:
http://www.law-democracy.org/wp-
content/uploads/2010/07/11.06.Joint-Declaration.Internet.pdf

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 INTERNATIONAL ORGANISATIONS ACTIVE ON FREEDOM OF EXPRESSION

International Organisations Active

on Freedom of Expression
Access Info Europe (Spain) www.access-info.org
Amnesty International (United Kingdom) www.amnesty.org
Arabic Network for Human Rights Information (Egypt) www.anhri.net/en
Article 19 (United Kingdom) www.article19.org
Centre for Democracy and Technology (United States) www.cdt.org
Centre for Law and Democracy (Canada) www.law-democracy.org
Committee to Protect Journalists (United States) www.cpj.org
Commonwealth Human Rights Initiative (India) www.humanrightsinitiative.org
Free Press Unlimited (Holland) www.freepressunlimited.org
Human Rights Watch (United States) www.hrw.org
Index on Censorship (United Kingdom) www.indexoncensorship.org
International Freedom of Expression Exchange (Canada) www.ifex.org
International Federation of Journalists (Belgium) www.ifj.org
International Media Support (Denmark) www.mediasupport.org
Internews (United States) www.internews.org
Media Legal Defence Initiative (United Kingdom) www.mediadefence.org
Pen International (United Kingdom) www.pen-international.org
Regional Alliance for Freedom of Expression and www.alianzaregional.net
Information (Uruguay)
Reporters Without Borders (France) www.rsf.org
Transparency International (Germany) www.transparency.org

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GLOSSARY

Glossary
American Convention on Human Rights Democracy: A form of government where
(ACHR): Also known as the Pact of San citizens freely elect the political leadership
José, an international human rights treaty through regular elections based on
adopted in 1969 (in force 1978) by States in universal and equal suffrage (or
the Americas. participation) and which also includes a
variety of mechanisms for direct citizen
Broadcasting: Communication of audio or engagement in decision making processes.
visual content in continuous blocks
(programme schedules) intended for European Court of Human Rights: An
simultaneous or subsequent reception by international court with responsibility for
the public, traditionally on a radio or hearing and ruling on alleged violations of
television set (but now via a variety of human rights among States which are
digital devices as well). members of the Council of Europe, all of
which have ratified the European
Chilling effect: An action which inhibits a Convention on Human Rights.
range of freedom of expression beyond
what is strictly intended, most commonly Expression: Any act which involves
as a result of the imposition of sanctions. seeking, receiving or imparting
The core of the effect is that speech beyond (communicating) information and/or
what is formally prohibited is affected, as ideas, regardless of the means (such as
people steer well clear of the line of orally, via the Internet or even using Morse
prohibition in an effort to avoid any risk of code).
a sanction.
Human right: Inalienable basic rights that
Council of Europe: An intergovernmental apply universally and equally to every
organisation aimed at promoting human being regardless of race, religion,
cooperation among the wider community ethnicity or any other status.
of European States (47 members as of June
2014) on key human rights issues. Inter-American Court of Human Rights:
An independent international court with
Customary international law: A form of the responsibility to hear and rule on
international law which arises from alleged violations of human rights among
established State practice. The basic idea is States which have ratified the American
that some principles are so universally Convention on Human Rights and accepted
recognised that, even in the absence of a the jurisdiction of the Court.
formally binding treaty, they may be
considered to be binding upon all States.
International Covenant on Civil and
Data retention: The preservation of an Political Rights (ICCPR): A legally
archive of data, often of a personal nature, binding treaty guaranteeing a range of civil
sometimes imposed as a legal requirement and political human rights. It had been
on Internet service providers. ratified by 168 States as of June 2014.

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 GLOSSARY

International law: A set of legal rules to justify as restrictions on freedom of

which are formally binding on States, both expression. Also known as prior restraint.
in relation to one another and in relation
to their internal conduct. These laws can Public interest: A complex and multi-
stem from treaties or conventions, or can faceted term which is very important in
arise from established State practice, terms of the human rights discourse.
known as customary international law. Defining the public interest is a highly
contextual exercise (i.e. it depends on all of
International human rights standards: A the circumstances) but it can be
set of binding or highly persuasive understood broadly as a consideration of
interpretations of international human the range of benefits that are likely to
rights. These standards are drawn from a accrue to society as a whole if a particular
variety of sources, including international course of action is followed.
jurisprudence and standard setting
statements by authoritative actors such as Security of tenure: Protection, sometimes
the special international mandates or for a fixed period of time, from being
leading civil society groups. removed from a particular position or job
unless certain limited conditions are met,
Internet: A global system of usually requiring a showing of legitimate
interconnected computer networks which cause, such as incapacitation or
communicate with one another and corruption.
thereby facilitate a number of applications,
of which the most famous is the World Special international mandates on
Wide Web. freedom of expression: Currently there
are four special mandates, namely the UN
Joint Declarations of the Special Special Rapporteur on Freedom of
Rapporteurs: Annual joint statements by Opinion and Expression, the OSCE
the special international mandates on Representative on Freedom of the Media,
freedom of expression which focus each the OAS Special Rapporteur on Freedom
year on a different theme, such as freedom of Expression and the African Commission
of expression on the Internet or safety of on Human and Peoples’ Rights Special
journalists. The statements are drafted with Rapporteur on Freedom of Expression and
the assistance of Centre for Law and Access to Information.
Democracy and Article 19 and are leading
statements of international freedom of Telecommunications: Traditionally
expression standards. systems which allowed for point-to-point
(or the connection of several points)
Net neutrality: A principle which rules out communication at a distance through
discrimination in the treatment of Internet technical means, particularly electrical
data and traffic, based on the device, signals or electromagnetic waves.
content, author, origin and/or destination Technological convergence based on
of the content, service or application. digital technologies is breaking down the
barriers between broadcasting,
Prior censorship: Restrictions imposed on telecommunications, the Internet and
a particular form of expression, historically other digital forms of communication.
most commonly on newspapers, before it
takes place. These systems are very difficult

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GLOSSARY

Tor: A computer program which uses

encryption technologies to allow users to
browse the web anonymously.

Transitional (or emerging) democracy: A

political unit (generally a State) which is in
the process of establishing and
strengthening democratic institutions,
particularly where the prior form of
government was undemocratic.

Tshwane Principles: A set of principles

developed by leading representatives of
civil society, government and the security
sectors on the appropriate limits of secrecy
in the name of national security.

UN Human Rights Committee

(UNHRC): A body of 18 independent
experts from around the world with the
responsibility of overseeing
implementation of the International
Covenant on Civil and Political Rights in
various ways, including through deciding
cases and by undertaking regular reviews
of State compliance.

Universal Declaration of Human Rights

(UDHR): The flagship United Nations
statement of international human rights.
Adopted in 1948 as a General Assembly
Resolution, the UDHR is not formally
legally binding on States, although many of
the rights it proclaims are widely regarded
as having acquired legal force as customary
international law.

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