Introduction – the importance of freedom of expression
Freedom of expression has long been regarded as a fundamental right, one which is important in itself and also helps to defend other rights and freedoms. There are three reasons why freedom of expression is so crucial. Firstly it is a human need to be ourselves and have our own identity, and the ability to express ourselves in words, music, dance or any other form of expression is central to the realisation of our humanity. Secondly it is a foundation for other rights and freedoms as without freedom of expression it is not possible to organise, inform, alert, or mobilise in defence of human rights. Thirdly, as Amartya Sen has persuasively argued it’s the pre condition of social and economic development as transparent and open communications are necessary to ensure economic and social development that benefits everyone.
The importance of the right to freedom of expression is reflected by its widespread protection in international law at the global and regional level. The right is protected in all significant international and regional human rights treaties, including Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR). It is also protected in regional treaties: by Article 13 of the American Convention on Human Rights; by Article 9 of the African Charter (elaborated by a specific declaration agreed in October 2002); and Article 11 of the European Convention on Human Rights (ECHR). Its significance is uncontested.
If it is to be fully realized, however, freedom of expression requires a public dimension—a means of communication—in order to facilitate the exchange of opinions, ideas and information. It follows that free expression activists have focused a great deal of attention on the structure and regulation of the media environment, for it is these that provide the principal platforms for public expression, from books and newspapers to the broadcast media.
How freedom of expression is supported – the UNESCO framework
Free expression has always required a means of communication to be effective, otherwise communication is confined to those we can immediately speak with. A megaphone goes farther than a human voice, a radio transmitter even further. These platforms have changed over the centuries, from wall paintings to print, through radio to analogue television. This means that the media must have the freedom to provide the means of information exchange, debate and opinion that is necessary to enable us to realise our freedom of expression in the fullest sense. It is inevitable therefore that free expression activists have always concerned themselves with the operations of the media and its ability to function free from repression and government control.
Much attention has been paid to the norms and standards that freedom of expression requires in the traditional media world. The consensus is that a media environment capable of supporting free expression will have a number of characteristics: it will be a diverse media environment, part public, part private and part community; a plurality of different media outlets; and a system that is broadly self-regulating with the exception of broadcast media (where spectrum has been limited and a regulatory body allocates bandwidth). Media professional will have sufficient training to understand and implement the demands of their profession and there will be adequate access to the means of the communication for people as a whole. This framework is elaborated in detail in UNESCO’s Media Development Indicators adopted by UNESCO in 2008. The analysis sets out five major categories of indicators that can be used to analyse the media development of a country. Each category is broken down into a number of component issues which in turn contain a series of broad indicators.
Media independence – what is the role of the state?
In the past many advocates have argued for minimal state interference in the media as the necessary condition for a media environment that can support democracy. This argument has particular currency in the United States with its First Amendment statement that “Congress shall make no law… abridging freedom of speech or the press...”Others, including UNESCO have argued that the construction of a modern media environment capable of supporting democracy and good governance may require a proactive role by the state – in providing infrastructure, funding a public broadcaster, ensuring the right kind of regulatory environment. Norris and Zinnbauer4 argue that independent journalism, as a potential check on the abuse of power, is a necessary but not sufficient means of strengthening good governance and promoting human development. They suggest that these goals are achieved most effectively under two further conditions. Firstly, in societies where channels of mass communications are free and independent of established interests; and secondly, where there is widespread access to these media. Both of these may require some action by the state.
UNESCO’s approach takes as its starting point that any attempt to measure media development must embrace issues of both independence and access as well as the absence of restrictions on the media. What matters is the extent to which all sectors of society, especially those who are most disadvantaged or marginalised, can access the media to gain information and make their voices heard. Limited access to – or lack of engagement with – the media is a function of poverty and poor education. It may also be caused or exacerbated by language, gender, age, ethnicity or the urban-rural divide. Whatever the cause, it contributes to an environment that can undermine democratic development.
However, the absence of state intervention on its own is no guarantee of a rich media environment. On the contrary: to promote a media environment characterised by pluralism and diversity, state intervention is necessary. To guarantee pluralism requires provisions for public broadcasting, commercial broadcast and print media and community-based broadcast and print media. As well as investment in human resources, specifically in building the professional capacity of media workers, both journalists and media managers, through academic and vocational training, ‘on-the-job’ development and the development of professional associations.
Infrastructure capacity is also crucial: promoting a diverse media environment requires money to flow into supporting the means of communication, including broadcast reception quality, the provision of electricity supplies and access to telephones and the Internet, all of which may require state support. In many parts of the world there is little or no access to the means of communication – in such environments, formal freedoms mean little.
To ensure media pluralism may require the application of competition law by the state to prevent
In addition where bandwidth – analogue spectrum for the most part – it is accepted that there needs to be a state mechanism to allocate that bandwidth.
“The main justification argued by governments is that broadcasting uses spectrum, and spectrum is a public resource, allocated to nations in ac-cordance with complex international agreements. As such, it is a scarce resource: there is only so much spectrum available for broadcasting use in each country. And therefore, because it is a scarce resource, it is valuable. ... It is therefore reasonable for the State, as the owner of spec-trum, to place obligations on broadcasters who use that resource.”
Finally many countries accept that were one form of media is overwhelmingly powerful and influential in a democracy the state may have a role in requiring this dominant media to display a degree of balance in reporting. In the case of public service media this requirement is particularly important to avoid accusations of government or factional political control of the media.
The other circumstances where the state plays a role, through its judicial arm, is in the regulation of content in certain limited circumstances. Freedom of expression is not an absolute right and it can be restricted to protect the rights of others for example by prohibiting speech that incites violence or hatred against a particular racial group; to protect children from sexual exploitation or to protect the reputation of individuals from false accusations. The accepted practice is for such restrictions to be narrowly defined and only applied by the courts where there is a clear public interest in so doing.
The media as a platform and a social actor
With these exceptions however, the consensus is that the state should stay out of regulating media because of its importance in supporting the human right to freedom of expression. Media outlets are crucial to the exercise of freedom of expression because they provide the public platform through which this right is effectively exercised. The idea of media as a platform for democratic debate embraces a wide variety of overlapping media functions. Media outlets are channels through which citizens can communicate with each other, acting as a facilitator of informed debate between diverse social actors, encouraging the non-violent resolution of disputes. The media disseminates stories, ideas and information and acts as a corrective to the “natural asymmetry of information” between governors and governed, and between competing private agents. The media can also function as a watchdog, promoting government transparency and public scrutiny of those with power through exposing corruption, maladministration and corporate wrongdoing, and thereby be a tool to enhance economic efficiency. The media can be a national voice, a means by which a society or a country can learn about itself and build a sense of community and of shared values, a vehicle for cultural expression and cultural cohesion within nation states.
However the media may potentially fulfil any or all of these functions, or none of them. In some contexts, the media may serve to reinforce the power of vested interests and exacerbate social inequalities by excluding critical or marginalised voices. In more established democracies, the role of the media has come under attack from those who believe it is undermining democracy through the trivial, anta-gonistic and personalized nature of its coverage. At its most extreme, the media can promote conflict and social divisiveness, particularly in a non-pluralistic media environment.
We think of the media as a place in which journalists convey ideas, information and stories to the listener, viewer or reader. If the views they present are representative of society as a whole then they are fulfilling our individual human rights, as readers/consumers, to freedom of expression. But this representation is only part of what they do. The other element is their own views and interests as journalists. The media, in reporting events, creates a social environment in which parties to the various debates in society, including the journalists themselves represent their own views. The media thus becomes an actor when it takes an editorial position, or when the broadcast media focus on certain issues or take a particular perspective. The idea that the journalist sits outside of the events they are covering, simply representing our rights to freedom of expression is only part of the picture.
Media constitute a space in which the debates and issues of a society can be articulated but are inevitably themselves actors in that conflict. To use sociological terms the media are both structure and agency. Policy makers tend to focus on the media’s role in constituting the public sphere of society – how that can be fostered and nurtured in a way as to permit the expression of the fullest range of views. By public sphere is meant that range of communication outlets and media which enable a society to view the representations of itself. To function properly a public sphere must have free flowing access to information, and enable the views of ordinary citizens to be heard. In the words of Jurgen Habermas it is “a discursive arena that is home to citizen debate, deliberation, agreement and action”. But it is also important to understand the role of the media as a social actor in itself, a partisan participant in the very debates that in covers, shaping them by commission or omission. If the state has no role in requiring the media to act in a responsible manner in the coverage of events, to ensure that it does not abuse the power it carries as a structure by exploiting its role as an agency, how is the media’s own accountability to be achieved? The answer has been self regulation. This is particularly important in countries where the media are linked to prominent business interests of political parties.
What is self regulation and its advantages?
What do we mean by self regulation? Self regulation is combination of standards setting out the appropriate codes of behaviour for the media that are necessary to support freedom of expression, and process how those behaviours will be monitored or held to account. The benefits of self regulation are well rehearsed. Self regulation preserves independence of the media and protects it from partisan government interference. It could be more efficient as a system of regulation as the media understand their own environment better than government (though they may use that knowledge to further their own commercial interests rather than the public interest). As the media environment becomes global (through the development of the internet and digital platforms) and questions of jurisdiction become more complex then self regulation can fill the resulting gap. It is less costly to government because industry bears the cost and can be more flexible than government regulation. Self regulation may also encourage greater compliance because of peer pressure (although there is also evidence that regulation or the threat of regulation is more likely to secure compliance). Self regulation can also drive up professional standards by requiring organisations to think about and even develop their own standards of behaviour.
Journalists codes of conduct
For many years self regulation was deemed to be the professional responsibility of journalists themselves and a variety of attempts have taken place to codify the responsibility of journalists, often through the medium of their professional associations. While various existing codes have some differences, most share common elements including the principles of truthfulness, accuracy, objectivity, impartiality, fairness. The earliest attempts to draft a code of ethics seem to be the Code of Journalistic Ethics adopted by the first Pan-American Press Conference held in Washington in 1926. It was adopted as policy by the Inter-American Press Association at a conference held in New York in October 1950.
The first International Federation of Journalists, established in 1926 but dissolved after the Second World War, took various steps aimed at self-regulation by the profession, including the establishment of an International Court of Honour in The Hague in 1931 and the adoption of a professional code of honour in 1939. Refounded in 1952, it developed a professional ethical code for journalists and adopted a declaration of journalists’ duties in 1954, at its Second Congress. Subsequently six journalists’ trade unions of the European Community adopted a Declaration of Duties and Rights of Journalists in November 1971. A range of national media institutions have developed their own codes of conduct, for example the Swiss Press Council.
These codes tend to focus upon certain accepted principles – a respect for truth and for the right of the public to truth; the right to fair comment and criticism; factual and objective reporting; the use of fair methods to obtain information; the willingness to correct mistakes; respecting the confidentiality of sources. These draw upon what is usually regarded as the essential elements of journalism – for example as sketched out by Bill Kovach and Tom Rosenstiel which they define as:
• Journalism’s first obligation is to the truth.
• Its first loyalty is to the citizens.
• Its essence is discipline of verification.
• Its practitioners must maintain an independence from those they cover.
• It must serve as an independent monitor of power.
• It must provide a forum for public criticism and compromise.
• It must strive to make the news significant, interesting, and relevant.
• It must keep the news comprehensive and proportional.
• Its practitioners must be allowed to exercise their personal conscience.
The limitation of codes of conduct is that they are difficult to uphold. They are essentially professional codes adopted voluntarily by journalists but without sanction if breached. It would be possible for a journalist association to expel a member who consciously breached such a code but that would not necessarily prohibit them from working as journalists. Moreover journalists often have little power within their organisations. Decisions about what stories to cover, how much budget is allocated to each story, what prominence is given are usually made by editors or senior managers. Media owners can use their power to influence how news is reported and published and shape the priorities of the media organisation. In such circumstances a journalist code of ethics will be relatively powerless.
Alongside journalists codes of ethics therefore it is helpful to have guarantees of editorial independence so that the journalist are able to operate free of direct control of the commercial interests of the owners. Editorial independence is taken to mean the right of journalists to decide what to cover, how to cover it and where to place the story in a newspaper, magazine or broadcast, regardless of the views of the owners. In most countries editorial independence is undefined in that there are relatively few formal codes specifying what it might mean. A notable exception is the agreement between the then National Association of Norwegian Newspapers (now the Norwegian Media Businesses’ Association) and the Association of Norwegian Editors. They adopted a declaration on the rights and duties of the editors in 1953, which is known in Norway as the Redaktørplakaten or Editors’ Code. This code includes the following:
“The editor shall promote the freedom of opinion and in accordance with the best of his/her abilities and strive for what he/she feels serves society.
Through his/her paper the editor shall promote an impartial and free exchange of information and opinion.”
It also assumes that the editor is legally responsible for the content of the media they edit. Although this was a voluntary agreement in recent years there has been an attempt to make it legally binding.
Other codes of editorial independence, such as the IFJ’s non binding code specify that editorial independence includes the right of the editorial council to be consulted on decisions, personnel policies, the right of the journalist to refuse an assignment if the assignment proves to breach journalists professional ethics, the right to define editorial policy and content of the paper/broadcasting station.
A third element of professional self regulation is the professional guidelines adopted by media organisations as a matter of editorial policy. Perhaps the best example of this is the various guidelines adopted by the BBC which are meant to govern its output. The overarching framework of the BBC guidelines is a statement of values.
“We must therefore balance our presumption of freedom of expression with our responsibilities, for example to respect privacy, to be fair, to avoid unjustifiable offence and to provide appropriate protection for our audiences from harm”
There is a conscious balance here between freedom and responsibility, a recognition that the freedom of the media to operate independently of government control, has to sit alongside some responsibilities in the exercise of that freedom. There are detailed guidelines that cover issues such as accuracy, fairness, impartiality, privacy, the avoidance of harm, the responsibilities of the media during elections, conflicts of interest and the coverage of sensitive issues such as conflict, young people, religion, crime and sexuality.
In the private sector the Guardian’s editorial code states that its purpose is “to protect and foster the bond of trust between the Guardian and its readers”. The code is voluntary and does not form part of the terms and conditions of the journalists – rather it is meant to define the culture of journalism at the paper. The code covers professional practice and issues such as conflicts of interest. However, adherence to the Press Complaints Commission Code of Practice (see below) is written into the terms of employment of journalists at the Guardian.
Another example of voluntary guidelines is that drawn up by the NGO Article 19 which produced a set of guidelines to govern election broadcasting particularly aimed at emerging transitional democracies18.
There are three interlocking aspects to professional self regulation which reinforce each other and which form a comprehensive approach to professional self regulation:
• Journalists’ codes of ethics
• Standards that ensure editorial independence
• Media organisations own guidelines on the coverage of events
• Inevitably this brings up questions of process – how are these self adopted codes upheld – do they rely solely upon the power of moral exhortation
or can they be given force in some way.
In many sectors of commercial life, self regulation is entrusted to a body of industry professionals to administer. Inside a media organisation the classic approach is to have a media Ombudsman – employed by the media company to receive and investigate complaints from newspaper readers or listeners or viewers of radio and television stations about accuracy, fairness, balance and good taste in news coverage. They can recommend appropriate remedies or responses to correct or clarify news reports. One of the earliest examples of such a position was the Asahi Shimbun newspaper in Tokyo which set up a committee in 1922 to receive and investigate reader complaints. The first newspaper ombudsman in the U.S. was appointed by the Courier-Journal and The Louisville Times in June 1967. News ombudsmen today are found throughout North and South America, Europe, and parts of the Middle East and Asia. The Ombudsman of the Guardian newspaper in the UK publishes a regular list of corrections and clarifications that respond to complaints upon coverage in the newspaper and also has the power to adjudicate more serious complaints and change the editorial policy.
Complaints mechanism can also be set up at the industry level, complementing the process within the media organisation. Many countries have press or media councils representing the media industry and established with the aim of both defending their interests and improving professional standards. In the UK, the government threatened to regulate the media’s conduct after several high profile abuses of accepted journalist standards. To avoid regulation the newspaper industry established a Press Complaints Commission and Code of Practice to allow members of the public to bring a complaint against a publication that had signed up to the Code of Conduct. The Code covers the usual areas – accuracy, respect for privacy, non harassment, reporting of young people, sexuality, crime and so on. The Commission has no legal powers – all newspapers and magazines voluntarily contribute to the costs of, and agree to abide by the findings of the Commission. In recent years about 9 out of 10 complaints have been resolved to the complainants satisfaction; although the MediaWise Trust, set up to campaign for “victims of media abuse”, has claimed that ordinary journalists voices, and those of the general public, are insufficiently represented on the Commission and that its rulings tend to favour the powerful rather than the poor.
The Global Reporting Initiative
In recent years a more comprehensive approach is being developed through the Global Reporting Initiative. The GRI is probably the world’s most common standard that ensures companies publicly report on all aspects of their economic, environmental, and social performance. The GRI seeks to make this “sustainability” a routine part of the company activity much like their financial reporting. According to the GRI
“Sustainability reports based on the GRI Framework can be used to demonstrate organizational commitment to sustainable development, to compare organizational performance over time, and to measure organizational performance with respect to laws, norms, standards and voluntary initiatives.”
The assumption behind the GRI is that greater transparency will act as an incentive to improve standards across the fields of environmental sustainability and corporate social responsibility. The most recent figures published by the GRI show that over 1000 organisations used GRI guidelines in their reporting in 2008.
GRI is currently developing sustainability reporting guidelines for the media sector in partnership with Ibero-American New Journalism Foundation, the Avina Foundation and the Program for Journalism Studies of Javeriana University in Columbia. The guidelines are being drawn up by a range of media organisations and global stakeholders. Among the partners involved in the production of the guidelines are the Australian Broadcasting Corporation, the BBC, Bertelsmann, Gestevision Telecinco from Spain, an NGO alliance the Global Forum for Media Development, Grupo Clarin from Argentina, the International Federation of Journalists (IFJ), The Guardian newspaper from the United Kingdom, TNT Broadcasting Network from the Russian Federation, Transparency International, Vivendi in France and Warner Bros. Entertainment Inc. from the USA24.
Using the UNESCO media framework indicators, the draft indicators will spell out the responsibilities of media organisations to support freedom of expression, ensure transparency of ownership and provide access to communications. Scheduled for public launch in late 2011 they could provide a useful supplement to other forms of self regulation by spelling out the obligations of media companies themselves, as distinct from their journalist or editors.
Role of internet as digital platform and implications for self regulation
The communications environment has been transformed by the ability to turn different kinds of information, whether voice, sound, image or text into digital code, accessible by a range of devices from the personal computer to the mobile phone. The emergence of the internet has transformed communication capacity from something essentially local (be it a locality or a country) into a medium that is truly global.
In their first incarnation, the internet and web were hailed as offering a new global, boundless space able to evade traditional censorship. John Gilmore, a libertarian activist and founder of the Electronic Frontier Foundation (whose name suggests its perspective), was quoted in Time magazine as saying “The Net interprets censorship as damage and routes around it”.25 Today, of course, the net has become a more contested, enclosed and nationalized space, but both the libertarian possibilities and the new forms of domination and control have recast the challenge to freedom of expression in the modern era.
What are the characteristics of this space that impact upon free expression rights? As a network of networks, the internet is an international platform which has no overarching jurisdiction. No single entity governs the totality of the internet: governance is provided by different components and institutions operating in very different jurisdictions. A program can be made in the Ukraine, uploaded onto a U.S. server, and downloaded in Ghana.
The international jurisdictional bodies such as the Internet Corporation for Assigned Names and Numbers (ICANN),26 the International Telecommunication Union (ITU), and the World Wide Web Consortium (W3C),27 like the national bodies which administer the national domains, are concerned with the efficient working of the system, its functionality, rather than governing the environment in the way that regulators govern broadcast media. Consequently, there is a
jurisdictional vacuum over content on the web. If there is a need for any state intervention it is not clear how such authority should be appropriately applied given that there is no means of regulating content internationally, nor any consensus on the norms that need to be applied. As a consequence a great deal of emphasis has been placed upon the importance of self regulation on line.
However there are dangers in this approach. There are no accepted self regulatory standards that have been developed for the internet environment. Consequently self regulation – principally by companies, takes place in a vacuum where it is shaped by commercial interties or private pressure from governments. For example Internet Service Providers (ISPs), which traditionally expected to be mere conduits for the services they carry are being asked to collect data on their users (for example by the EU Data Retention Directive 2006/24/EC) and even monitor browsing histories through voluntary agreements with governments that have no legal scrutiny28. The lack of overt legal guidance and understandable wariness about carrying controversial material leads to overzealous actions by ISPs themselves and a willingness to take down controversial material simply if someone complains29. This results in what is, in effect, a broad regime of censorship that contrasts with the narrow interpretations of the law and careful application of standards expected in the offline world. This underlines the importance of any system of self regulation being undertaken in accordance with transparent and clear norms.
In summary it is important to recognise the dual character of the media and its implications. Firstly it is a site which permits the free exchange of ideas and opinion necessary in a democracy and which is therefore deserving of the highest protection and freedom from state interference. Secondly it is a social actor in its own rights, who’s choices about whether or how to cover events and whose editorial position can also shape events and in that way is required
to act in a socially responsible fashion. It is this dual character that makes an effective form of self regulation so essential.
Self regulation is not a simple matter however; it places requirements upon every level of the media organisation, on the journalist themselves, on their editors and managers, on the approach of the media organisation to the production of content and the overall behaviour of the media company. The fast evolving nature of online media, and the complex jurisdictional questions thrown up by a globalised environment, place self regulation at the heart of the evolving media landscape.
There are two overarching principles if we accept that self regulation is the necessary alternative to state control of the media. Firstly all media actors, professional or business have obligations to uphold in exchange for the freedom of state interference that they rightly claim. These obligations should be centred on the need to protect and promote freedom of expression. Secondly, all such obligations should be made explicit and transparent and be the subject of
regular reporting in the public sphere. Both conditions are essential if self-regulation is to protect freedom of expression and not just the interests of companies themselves.