Article 19 rights and sunshine laws

What the treaties say

The main rights directly affecting media are the rights to freedom of expression, opinion and information. These rights are expressed in the UDHR and in the ICCPR. They are referred to as "Article 19 rights" because they are expressed in Article 19 of both the UDHR and the ICCPR.

UDHR, Article 19:

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

ICCPR, Article 19:

  1. "Everyone shall have the right to hold opinions without interference."
  2. "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

Article 19 rights are, like all other rights, universal, inherent and inalienable.

Understanding Article 19 Rights

  1. "Everyone shall have the right…"

    The right to freedom of expression belongs to everyone; no distinctions are permitted on the basis of a person’s level of education, or race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status.

  2. "…to seek, receive and impart…"

    To impart is the right to tell others what you think or know, whether in a private meeting or through mass communication. To seek and receive entitles us to access as wide a range of information, viewpoints and ideas of others as possible.This includes obtaining and reading newspapers, listening to broadcasts, surfing the Internet, participating in public debates as a listener, and undertaking journalistic or academic research. It also includes the right to access records held by public authorities, obliging governments to publish important information and respond to requests from individuals to access their records.

  3. "…information and ideas of any kind…"

    The right to freedom of expression applies not only to information and ideas considered to be useful or correct, but to any kind of fact or opinion which can be communicated, including news and information, advertising, art, etc. It also includes controversial, false or even shocking material, and the ideas of minority groups. The fact that an idea is disliked or thought to be incorrect does not justify stopping a person from expressing it.

  4. "…regardless of frontiers…"

    The right to freedom of expression is not limited by national boundaries; states must allow their citizens to seek, receive and impart information to and from other countries.

  5. "…through any media…"

    People should be permitted to express themselves through any media, whether modern or traditional. This includes newspapers, magazines, books, pamphlets, radio, television, the Internet, works of art, public meetings and any other form of media.

Sunshine laws

Secrecy leads to rumor, a culture of conspiracy and corruption. Information is needed to hold governments to account.

"Sunlight is said to be the best of disinfectants" — Justice Louis Brandeis of the US Supreme Court, writing about the value of transparency in "Other People’s Money and How the Bankers Use It," Chapter V: What Publicity Can Do (1914)

One proactive measure that many states have taken in fulfillment of their Article 19 obligations is to introduce freedom of information laws. Freedom of information laws are sometimes called "sunshine laws," referring to the quotation above by Justice Louis Brandeis. Journalists – like everyone else – can use these laws. Sunshine laws apply to all institutions – government and the private sector. They address government transparency as well as private sector issues. Article 19 rights are recognized as the most important rights. Where Article 19 Rights are strong, other rights and freedoms will be protected:

Article 19 rights in the newsroom

Article 19 rights defenders argue that Article 19 rights give journalists a special role in society, because through their work journalists ensure that the general public can achieve their rights to freedom of expression and information. Without good journalism, the general public would not be able to enjoy their Article 19 rights. This argument has often been used in courts to defend journalists and media freedoms. Journalists should therefore be able to practice freely; that is, to make decisions and choices about what stories to cover and follow, what audiences to reach, whom to interview and what facts, sounds and pictures to include, without pressure or fear.

Confusion alert!

Article 19 does not say that people have a right to media. Media are only a tool through which the basic human rights of freedom of opinion, expression and information can be achieved.

Nor does it give journalists any special rights. Journalists depend on human rights to do their job, but there are no special rights for journalists. Journalists have the same rights to freedom of expression, opinion and information as all other citizens.

Limitations on freedom of expression

Both the UDHR and the ICCPR put limits on freedom of expression and information. Article 19 of the ICCPR emphasizes that the right of freedom of opinion and expression "...carries with it special duties and responsibilities. It may therefore be subject to certain restrictions." Article 29 of the UDHR says that everyone has "duties to the community." All rights, including the right to freedom of expression, are limited by these duties. The aim of these clauses is to ensure that people exercising the right of freedom of expression do not infringe on any other rights; for example, the right to privacy, the right to live free from racism, the right to good reputation and freedom from crimes like libel or defamation. They also imply a duty to give information that is factual and accurate. The UDHR (Article 29) and the ICCPR (Article 19) say that limitations may only be imposed by law. Laws limiting freedom of expression should only be intended to ensure that people’s rights are respected, and for the protection of national security or of public order, public health or morals. For ICCPR States Parties, Article 19 is legally binding. In other words, a state which suppresses freedom of expression for any other reason, or whose laws go beyond the limitations set out in Article 19, is violating the rights of its people. The UN Human Rights Council (UNHRC) also lists "permissible" limitations on freedom of expression. According to the UNHRC, states may limit freedom of expression if the limitations:

  • Protect people against inaccurate and offensive statements
  • Protect privacy under certain circumstances
  • Allow the state to protect its security
  • Prevent "hate" journalism – especially where it promotes racism, ethnic or religious hatred
  • Prevent propaganda for war

Limitations on freedom of information

Ideally, good access to information laws should enable all information held by any public body to be disclosed. However, international standards agree that governments may refuse to disclose information when they can show that disclosure would cause harm, and that this harm would be greater than the benefit of disclosure. Many governments limit freedom of information laws by arguing that disclosure of information would threaten state security.

Article 19 rights in the UN System

The main UN bodies concerned with Article 19 rights are:

  • The Human Rights Committee, which oversees states’ compliance with the ICCPR.
  • The Human Rights Council, which sponsors the work of a Special Rapporteur on freedom of opinion and expression. Special Rapporteurs are independent experts mandated to research particular human rights issues or themes as part of the Special Procedures of the UN.
  • UNESCO (United Nations Educational, Scientific and Cultural Organization). UNESCO is part of the UN system, and has a special focus on freedom of information and communication and communication for development.

Ten threats to freedom of expression across the world

The UN and international and national civil society media monitors believe there have been vast improvements with respect to media freedom and freedom of expression in most countries. But they also say there is a long way to go.

After reviewing constitutions and national laws of states across the region, UN rapporteurs and media monitors from Africa, US, Latin America and Europe listed 10 threats to freedom of expression in the next decade:
1. Government control, especially:

  • Political influence or control over public media.
  • Registration requirements for the print media or to use or access the Internet.
  • Direct government control over licensing and regulation of broadcasters.
  • Abuse of state advertising or other state powers to influence editorial policy.
  • Ownership or control of the media by political leaders or parties.
  • Politically motivated legal cases being brought against independent media.
  • Keeping antiquated legal rules – such as sedition (treason) laws or rules against publishing false news – which penalize criticism of government.

2. Criminal defamation – laws making it a crime to defame, insult, slander or libel someone or something are still in place in most countries, including:

  • Laws that do not require the accuser to prove lies or malice.
  • Laws which penalize true statements.
  • Protection of the reputation of public bodies, of state symbols or flags, or the state itself.
  • Protection of beliefs, schools of thought, ideologies, religions, religious symbols or ideas.
  • Unduly harsh punishment, including imprisonment, fines and loss of civil rights, including the right to practice journalism.

3. Violence against Journalists – there were more politically motivated killings of journalists in 2009 than in any other year in the past decade. Threats include:

  1. Failure by states to allocate resources to preventing and investigating attacks.
  2. Lack of recognition that special measures are needed to address attacks against journalists.

4. Limits on the Right to Information – major threats are:

  • The majority of states have still not adopted laws guaranteeing the right to information.
  • Laws in many states are weak.
  • The challenge of implementing the right to information in practice (delays in response time; ignoring requests for information).
  • Lack of openness around elections.

5. Discrimination in the enjoyment of the right to freedom of expression – women, minorities, refugees, indigenous peoples and sexual minorities – continue to struggle to have their voices heard.

  • Obstacles to establishment of media by and for disadvantaged groups.
  • Misuse of hate speech laws to prevent disadvantaged groups from debating their problems and concerns.
  • Few members of disadvantaged groups are employed in mainstream media.
  • Inadequate coverage of issues of relevance to disadvantaged groups.
  • Stereotypes and derogatory information about disadvantaged groups being disseminated in society.

6. Commercial Pressures

  • Growing concentration of ownership of the media, with implications for content diversity.
  • Fracturing of the advertising market, and other commercial pressures, leading to cost-cutting measures such as less local content, cheap, shallow entertainment and a decrease in investigative journalism.
  • The digital switchover may favor existing broadcasters to the detriment of greater diversity and access.

7. Support for Public Service and Community Broadcasters – threats include:

  • Frequent challenges to public funding support for public broadcasters.
  • Lack of a clear public service mandate for public broadcasters.
  • Lack of legal recognition of the community broadcasting sector in licensing systems, and failure to reserve frequencies for community broadcasters and set up funding support agencies.

8. Security and Freedom of Expression – increase in the use of national security as a reason for restricting freedom of expression, especially since the attacks of September 2001 (on the World Trade Center) and the international “war on terror”:

  • Vague and/or overbroad definitions of key terms such as security and terrorism.
  • Abuse of vague terms to limit critical or offensive speech which do not constitute incitement to violence.
  • Pressures on the media not to report on terrorism, on the grounds that this may promote the objectives of terrorists.
  • Expanded use of surveillance techniques and reduced oversight of surveillance operations, which exert a chilling effect on freedom of expression and undermine the right of journalists to protect their confidential sources.

9. Freedom of Expression on the Internet – some governments control the Internet, for example:

  • Fragmentation of the Internet through the imposition of firewalls and filters, as well as through registration requirements.
  • State interventions, such as blocking of websites and Web domains which give access to user-generated content or social networking.
  • Some corporations fail to make a sufficient effort to respect the rights of access the Internet without interference, for example on political grounds.

10. Access to Information and Communication Technologies

  • Pricing structures make the Internet too expensive for the poor.
  • Infrastructure and connectivity do not reach many places.
  • Limited support for community-based ICT centers.
  • Inadequate training and education particularly among poor, rural and elderly populations.

Summarized from “International Mechanisms for Promoting Freedom of Expression: Tenth Anniversary Joint Declaration: Ten Key Challenges To Freedom of Expression In The Next Decade,” by the UN Special Rapporteur on Freedom of Opinion and Expression; the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media; the Organization of American States (OAS) Special Rapporteur on Freedom of Expression, and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information. To see the full text of the Declaration, visit:
http://www.article19.org/pdfs/standards/tenth-anniversary-joint-declarat...

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