November 24th, 2008
December 10th marks the 60th Anniversary of the Universal Declaration of Human Rights. (See Singapore’s commemorative events organised by U60 here.) Below is the text of a keynote lecture at the University of Melbourne’s Centre for Media and Communications Law Annual Conference, 20 November 2008.
Next month marks the 60th anniversary of the Universal Declaration of Human Rights, whose Article 19 remains a powerful proclamation of the value of freedom of expression:
“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.”
While certainly not fully implemented anywhere, nor equally respected by all governments, it could nevertheless be said that the value of freedom of expression is more widely accepted today than at any time before.
Amartya Sen, writing in 1999, observed that democracy – which in his broad definition includes the “guaranteeing of free discussion and uncensored distribution of news and fair comment” – had achieved the status of a “universal value” over the course of the 20th century. It is “not yet universally practiced, nor indeed uniformly accepted” but “in the general climate of world opinion, democratic governance has now achieved the status of being taken to be generally right”.
Indeed, it is probably no longer – if it ever was – meaningful to speak of an Asian-Western divide over the principle of freedom of expression.
A week ago, I returned from a lecture tour of five Southeast Asian capitals – Bangkok, Jakarta, Kuala Lumpur, Phnom Penh and Vientiane – with a professor of law, Kevin Boyle of the University of Essex. We were mentally prepared for the diversity of the societies that make up this region. We were struck more by the common ground. Whether it was cosmopolitan Malaysia or landlocked Laos , there was a shared understanding of the benefits of media freedom, but also national debates about how to minimise the harmful effects of that freedom.
Indeed, debates over media freedom are at the centre of political transitions and turmoil in most societies. These debates are probably as profound and passionate within each country and region – whether Asian or Western – as they are between regions or civilisations. While the particularities of each society may make its citizens feel that their situation is entirely unique, the issues being confronted tend to have precedents and parallels elsewhere. Therefore, conversations across national boundaries can be extremely enriching and provide guidance for each society that is trying to navigate the fraught choices before it – another reason why an international conference like this one is well timed and meaningful.
In attempting to survey the global landscape of media freedom, I cannot aim to be comprehensive, as I am limited by my own competence and our time. Instead, let me simply suggest a few trends that might help frame our discussions.
- Protecting the media from government censorship and repression continues to be a major challenge.
- Political control has become more sophisticated and less visible.
- Attacks on media by non-state actors have grown into a major threat.
- Media freedom is diluted by lack of public accountability and access.
First, the topic of government censorship and repression. On a weekly basis, we receive news about media coming under attack: newspapers closed down, blogs being censored and so on. Journalists and bloggers are imprisoned for their work.
States that infringe on communication rights generally do not deny the validity of freedom of expression as a universal norm, but argue that this must be balanced with other social priorities. Freedom of expression is not an absolute right. It must take into account the rights of others, including the right to protect one’s reputation and privacy, and can be curtailed to protect national security, public order, public health and morals. Indeed, international human rights law requires states to prohibit speech that advocates national, racial or religious hatred and incites discrimination, hostility or violence.
However, the International Covenant on Civil and Political Rights states clearly that freedom should be the rule, while limitations should be the exception. And the Covenant sets out the test for assessing the legitimacy of restrictions on freedom of expression.
First, any interference must be according to a law. Second, the restriction must be aimed at protecting or promoting some pressing social need that is deemed legitimate in international law. Third, it must be a necessary action that could not be substituted by some less restrictive response that would also achieve the desired end. These are tests that many regimes fail spectacularly, choosing instead to engage in overkill. While their targets may indeed have been guilty of some professional lapse or other, the governments’ cure is far more harmful than the disease that the writer is accused of spreading.
The most serious violations typically do not occur in isolation. They tend to be associated with civil unrest and strife, and states of emergency in general. Not surprisingly, therefor, Iraq is the most dangerous country in the world for journalists. Although the Geneva Conventions provide for the protection of journalists in conflict zones, they are frequently singled out by combatants. Beyond war zones, targets of violations are not just media professionals, but also political activists, artists, lawyers, academics, students, trade unionists, peasants and other individuals trying to use their voice to press for social change.
Violations mirror wider patterns of inequality: even when rights exist on paper, implementation is often selective. For example, when invoking freedom of information laws, people belonging to marginalised groups, such as the disabled or ethnic minorities, are less likely to get results than journalists or NGOs.
Let me move on to my second point, which is that violence by non-state actors is in many countries deserving of greater fear than acts perpetrated by their governments. These would include warring militia during civil wars and opposing parties during elections, as well as business mafia snuffing out investigative journalism. Religious authorities can threaten journalists and artists by instigating their followers to exact violent retribution for perceived insults or offence.
Perhaps the most interesting development within this category of non-state actors is the emergence of people power as an enemy of press freedom.
In a number of countries, political actors harness intolerant mobs to attack and silence media workers and other targets, often in the name of religion or nationalism. In Thailand, for example, recent anti-government protests have targeted the national broadcaster, NBT, forcing closures. Independent professional organisations have rightly condemned such attacks.
One joint statement from Thai journalism associations said: “The mob action is one of the gravest and most blatant assaults on media freedom to date. The media was threatened, intimidated and kept from performing their duty.”
Another statement added: “This … denigrates the values of plurality as well as the safety of journalists, both of which are crucial to genuine press freedom and the free flow of information. Against this, even the protesters’ argument that NBT is a ‘government mouthpiece’ can in no way justify their deplorable behaviour.”
Malaysia has also witnessed this worrying trend, of intolerant mobs forcing a stop to peaceful and legal forms of expression such as meetings on inter-faith matters.
These incidents underline the fact that “too much government” is not the only threat to media freedom. Media can be equally threatened by “too little government”. Beyond the obligation to refrain from violating human rights themselves, states also have a positive obligation to protect individuals threatened by lawless conduct of non-state actors, notes the Committee to Protect Journalists.
In the case of Malaysia, the authorities have been known to express sympathy with the mobs on the grounds that the protests are expressions of popular will. This, of course, is a convenient and perverted understanding of democracy. In a democratic society, majority rule has to be tempered by the rule of law. Public opinion should not run roughshod over the rights of individuals or minorities.
In some cases, there is a genuine lack of state capacity to uphold the law. Sometimes, however, governments don’t do enough to protect the press from these attacks by non-state actors, because they benefit from the unfree media environment created by the attacks.
Less visible controls
The third theme that I’d like to address is the growing sophistication of political controls over media.
The latest Attacks on the Press report by the Committee to Protect Journalists notes that powerful interests have grown more innovative in their controls. “Governments are now less likely to imprison a journalist explicitly for his or her work than to bring vague antistate charges such as subversion,” it says.
This trend is of course a byproduct of the universal currency of freedom and democracy that Amartya Sen referred to. With growing domestic and international consciousness about freedom of expression and human rights in general, governments have been opting for less visible and less sensational restrictions.
Since Singapore is very much the archetypal “soft authoritarian” regime, let me illustrate this point by referring to media regulations constructed by our first prime minister and current minister mentor, Lee Kuan Yew.
Singapore’s regulatory regime comprises multiple layers of control. The ultimate power is in the form of the discretionary laws, including licensing laws that allow the government to decide who can own print or broadcast media and to close them down at whim; and the Internal Security Act, which allows arrest without warrant and detention without trial.
The government can also pursue its case in court, primarily through civil defamation suits but also the Sedition Act, which has been used recently against internet postings that have caused offence to racial or religious communities.
Finally, there is a layer of controls that harness economic and technological forces that are seemingly unconnected to the government’s policy levels. The economic architecture of Singapore’s media system gives media companies an incentive to seek profit over any ideological goals, and allows them to be coopted easily by the ruling party. Meanwhile, the technological infrastructure of Singapore’s pervasive digital networks enable discreet surveillance of communication.
These layers of control can be said to lie on a continuum between the highly visible and the practically invisible. At the less visible end of the spectrum are constraints that seem like natural outcomes of markets and technologies. Market forces and technological progress appear to many as the natural order of things, rather than the result of underlying man-made structures that are in turn shaped by regulatory choices.
Market-related and technological limits to freedom of expression are powerful precisely because of their taken-for-granted quality, which leaves them off the table when communication rights are discussed. The other reason why these forces are less visible is that they are apparently victimless. More visible restrictions – such as silencing a journalist by detaining and torturing him – are usually accompanied by violations of other individual rights. The use of economic inducements to manipulate behaviour, however, is not something that journalists are going to complain about to Amnesty International.
The history of the Singapore government’s control of media shows a clear transition. Initially, up to the early 1970s, it relied mainly on its arbitrary powers, and secondarily on defamation and other laws.
Over the last 20 or more years, however, it has exercised noticeable self-restraint in its use of Internal Security Act detentions or newspaper closures, and instead switched to more behind-the-scenes controls by manipulating the ownership and incentive structures of media organisations.
Significantly, it has not needed to nationalise the country’s monopoly newspaper group, Singapore Press Holdings. Lee Kuan Yew realised that private ownership of newspapers was not necessarily incompatible with a political control of content. Indeed, shareholders’ focus on profitability over ideology could make them supporters of the status quo. What could not be countenanced was a wilful media baron or family owners who might place a higher priority on pride or a pet cause, even at the expense of profits.
The last time the Singapore government detained the employees of a national newspaper was in 1971, and it probably was not lost on Lee Kuan Yew that this paper, the Chinese-language Nanyang Siang Pau, was family owned. He saw up close the political risk of dealing with a newspaper that did not respond only to shareholder value but also to the agendas of its publishers.
Which is why in press laws introduced 1974, Lee essentially outlawed press barons by requiring newspaper company stock to be spread thinly, such that today no shareholder is allowed to control more than 12% of a newspaper company.
This system has basically worked, aligning the interests of newspaper companies with a pro-business state, and making it unnecessary for the government to use licensing laws or the ISA against the media.
Public accountability and access
Let me turn next to the question of public accountability and access. Who controls the media, and how can the public ensure that its interests are represented.
Developing effective voluntary accountability mechanisms – such as media councils and ombudsmen – is an important priority. They strengthen media freedom in two ways. First, they provide the public with a means of influencing the media’s behaviour that does not rely on the force of law. Let’s not forget that even many rational freedom-loving citizens have serious and legitimate misgivings about media performance, especially in areas of taste and decency and the invasion of privacy. Effective accountability systems would make it less likely that these citizens would support government action, which would amount to a much more serious threat against media freedom.
Accountability mechanisms also strengthen media freedom in a more fundamental way. It could be argued that media freedom belongs to the public, and not just to media practitioners and media owners. The Australian cultural theorist John Hartley puts it best, I think. He argues that, taking Article 19 seriously, journalism should be seen as a human right to be practised by all. Just as large societies can’t implement direct democracy and require that we settle for systems of representative democracy, so too we’ve had to make to with basically “representative journalism”, in which media professionals exercise each person’s rights on his or her behalf.
This practical necessity, however, should not allow media professionals to convince us that journalism is a kind of elite tribe or “ethnicity”, as Hartley calls it, rather than a human right. It is in this fundamental sense that we should see any move that democratises access to media, including by increasing the media’s level of accountability to the public, as increasing that society’s level of media freedom.
I should stress that accountability mechanisms should be built without government involvement, for obvious reasons.
In contrast, there may be a role for government in improving public access to media by ensuring media diversity. Meaningful diversity should not be confused with endless variety. The free market is quite capable of producing variety in our media environment, in the same way that the market offers us a choice of Coke or Pepsi or various other sweet fizzy soft drinks. For more than a century, commercial media have also proved to be the most sustainable organisational model for employing large numbers of professional journalists. However, there are systemic gaps in the market’s offerings. Communities with limited purchasing power, either because they are too small or too poor, tend to be under-served by commercial media. For example, practically every newspaper has a business section written for investors, but few have labour sections serving the working class.
Commercial media, in their pursuit of profit, may also be less focused on the media’s responsibility to help construct the public, including by serving as a national forum for conciliation.
These gaps can be filled by independent public service media, and by alternative, grassroots media, which may be too small to make a national impact, but often serve their niche communities far better than the big players.
It is sometimes assumed – especially by the young, like most of my students – that the internet can address the challenge of media diversity. Certainly, the internet has been revolutionary in providing us with diverse media from around the world. However, there are also significant gaps in the internet’s coverage. The internet hasn’t really helped us crack the problem of how to support financially the costly business of scrutinising and analysing matters of public interest, especially at the local level.
Access to the internet, therefore, does not release us from the challenge of building meaningful media diversity.
Here, again, the state may have a role. The UN Special Rapporteur on freedom of opinion and expression has reported to the Human Rights Council that governments should take steps to “create a free and enabling environment where a plurality of media outlets can exist. … Measures need to be taken to prevent the phenomenon of media concentration, in particular the creation of media monopolies tha could endanger pluralism, affect media independence and increase the cost of information.”
In his report this year, he also referred to “marginalized and vulnerable groups”: “For these groups, the media plays the central role of fostering social mobilization, participation in public life and access to information…. Without a means to disseminate their views and problems, these communities are in effect shut down from public debates, which ultimately hinders their ability to fully enjoy their human rights.”
There are some countries that enshrine community media in their laws and even provide public funding for them. I hope that the current ideological shift away from neoliberal values will open more eyes to the real need for such positive national policies, without which media freedom cannot be tasted by all.
This lecture draws on an unpublished report on Freedom of Expression co-authored with Kevin Boyle of the University of Essex as part of the 8th Informal ASEM Seminar on Human Rights 2007, organised by the Asia Europe Foundation.
Hartley, John (2008). “Journalism as a Human Right: The Cultural Approach to Journalism”, in Martin Löffelholz and David Weaver (Eds.) Global Journalism Research. Oxford: Blackwell.
Ligabo, Ambeyi (2008). Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, presented to the United Nations Human Rights Council Seventh Session.
Sen, Amartya (1999). “Democracy as a universal value”, Journal of Democracy 10 (3), pp. 3-17.