The Guarantee of Freedom of Expression
The Universal Declaration of Human Rights (UDHR) is generally considered to be the flagship statement of international human rights, binding on all States as a matter of customary international law. It guarantees the right to freedom of expression in the following terms:
Everyone has the right to freedom of opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers (4).
The International Covenant on Civil and Political Rights (ICCPR) is an international treaty, ratified by over 145 States, which imposes legally binding obligations on States Parties to respect a number of the human rights set out in the UDHR. Article 19 of the ICCPR guarantees the right to freedom of opinion and expression in terms very similar to those found at Article 19 of the UDHR (5). Guarantees of freedom of expression are also found in all three major regional human rights systems, at Article 9 of the African Charter on Human and Peoples’ Rights (6), Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (7) and Article 13 of the American Convention on Human Rights (8).
Freedom of expression is among the most important of the rights guaranteed by the ICCPR and other international human rights treaties, in particular because of its fundamental role in underpinning democracy. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which stated, "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." The European Court of Human Rights has stated:
Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man … it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (9).
The guarantee of freedom of expression applies with particular force to the media, including the broadcast media and public service broadcasting organisations. The Inter-American Court of Human Rights, for example, has stated: "It is the mass media that make the exercise of freedom of expression a reality" (10). The European Court of Human Rights has referred to "the pre-eminent role of the press in a State governed by the rule of law." (11) The media as a whole merit special protection under freedom of expression in part because of their role in making public "information and ideas on matters of public interest. Not only does [the press] have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’." (12)
It may be noted that the obligation to respect freedom of expression lies with States, not with the media per se. However, these obligations do apply to state-funded broadcasters. Because of their link to the State, these broadcasters are directly bound by international guarantees of human rights. In addition, state-funded broadcasters are in a special position to satisfy the public’s right to know and to guarantee pluralism and access and it is therefore particularly important that they promote these rights.
Article 2 of the ICCPR places an obligation on States to "adopt such legislative or other measures as may be necessary to give effect to the rights recognised by the Covenant." This means that States are required not only to refrain from interfering with rights, but that they must take positive steps to ensure that rights, including freedom of expression, are respected. In effect, governments are under an obligation to create an environment in which a diverse, independent media can flourish, thereby satisfying the public’s right to know.
An important aspect of States’ positive obligations to promote freedom of expression and of the media is the need to promote pluralism within, and to ensure equal access of all to, the media. As the European Court of Human Rights stated: "[Imparting] information and ideas of general interest … cannot be successfully accomplished unless it is grounded in the principle of pluralism." (13) The Inter-American Court has held that freedom of expression requires that "the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media." (14)
One of the key rationales behind public service broadcasting organisations is that they make an important contribution to pluralism. Indeed, the German Federal Constitutional Court has held that variety is a constitutional obligation for public service broadcasting organisations.(15) For this reason, a number of international instruments stress the importance of public service broadcasting organisations and their contribution to promoting diversity and pluralism. Although not all of these instruments are formally binding as a matter of law, they do provide valuable insight into the implications of freedom of expression and democracy for public service broadcasting.
For example, a Resolution of the Council and of the Representatives of the Governments of the Member States, passed by the European Union, recognises the important role played by public service broadcasting organisations in ensuring a flow of information from a variety of sources to the public. The European Union includes 15 member States broadly committed to market integration and monetary union. The Protocol notes that public service broadcasters are of direct relevance to democracy, social and cultural needs, and the need to preserve media pluralism. As a result, funding by States to such broadcasters is exempted from the general provisions of the Treaty of Amsterdam.(16) For the same reasons, the 1992 Declaration of Alma Ata, adopted under the auspices of UNESCO, calls on States to encourage the development of public service broadcasters.(17)
Resolution No. 1: Future of Public Service Broadcasting of the 4th Council of Europe Ministerial Conference on Mass Media Policy, Prague 1994, promotes very similar principles. This resolution notes the importance of public service broadcasting to human rights and democracy generally and the role of public service broadcasting organisations in providing a forum for wide-ranging public debate, innovative programming not driven by market forces and promotion of local production. As a result of these vital roles, the resolution recommends that member States guarantee at least one comprehensive public service broadcasting organisation, accessible to all.
Independence and Funding
The State’s obligation to promote pluralism and the free flow of information and ideas to the public, including through the media, does not permit it to interfere with broadcasters’ freedom of expression. Although licensing of broadcasters is necessary to ensure the orderly use of the airwaves, licensing procedures are governed by the guarantee of freedom of expression and they may not, as a result, be used as a vehicle for government control over broadcasters, including state-funded broadcasters. This follows from a case before the European Court of Human Rights which decided that any restriction on freedom of expression through licensing was subject to the strict test for such restrictions established under international law (18). In particular, any restrictions must be shown to serve one of a small number of legitimate interests and, in addition, be necessary to protect that interest. Similarly, in the preamble to the European Convention on Transfrontier Television, States: "[Reaffirm] their commitment to the principles of the free flow of information and ideas and the independence of broadcasters" (19).
An important implication of these guarantees is that bodies which exercise regulatory or other powers over broadcasters, such as broadcast authorities or boards of state-funded broadcasters, must be independent. This principle has been explicitly endorsed in a number of international instruments.
Perhaps the most important of these is Recommendation No. R(96)10 on the Guarantee of the Independence of Public Service Broadcasting, passed by the Committee of Ministers of the Council of Europe, a body currently comprised of 41 States, committed to human rights and the social advancement of its members. The very name of this Recommendation clearly illustrates the importance to be attached to the independence of public service broadcasting organisations. The Recommendation notes that the powers of supervisory or governing bodies should be clearly set out in the legislation and these bodies should not have the right to interfere with programming matters. Governing bodies should be established in a manner which minimises the risk of interference in their operations, for example through an open appointments process designed to promote pluralism, guarantees against dismissal and rules on conflict of interest (20).
Several Declarations adopted under the auspices of UNESCO also note the importance of independent public service broadcasting organisations. The 1996 Declaration of Sana’a calls on the international community to provide assistance to state-funded broadcasters only where they are independent and calls on individual States to guarantee such independence. The 1997 Declaration of Sofia notes the need for state-owned broadcasters to be transformed into proper public service broadcasting organisations with guaranteed editorial independence and independent supervisory bodies (21).
Resolution No. 1: Future of Public Service Broadcasting of the 4th Council of Europe Ministerial Conference on Mass Media Policy, noted above, reiterates these principles, including the need for independent governing bodies, and for editorial independence and adequate funding. These recommendations, particularly the requirement of effective independence from government – including financial independence – are reiterated in a number of resolutions and recommendations of the Parliamentary Assembly and other Ministerial Conferences on mass media policy of the Council of Europe (22).
ARTICLE 19, Global Campaign for Free Expression, an international human rights NGO focusing on freedom of expression, has adopted a set of recommendations drawn from international law and practice relating to broadcasting, entitled, Measures Necessary to Protect and Promote Broadcasting Freedom (23). Recommendation 1 reflects the principles noted above, stating: "The independence of the governing body of the public broadcaster should be guaranteed by law".
These same principles are also reflected in a number of cases decided by national courts. For example, a case decided by the Supreme Court of Sri Lanka held that a draft broadcasting bill was incompatible with the constitutional guarantee of freedom of expression. Under the draft bill, the Minister had substantial power over appointments to the Board of Directors of the regulatory authority. The Court noted: "[T]he authority lacks the independence required of a body entrusted with the regulation of the electronic media which, it is acknowledged on all hands, is the most potent means of influencing thought" (24).
Similarly, the Supreme Court of Ghana noted: "[T]he state-owned media are national assets: they belong to the entire community, not to the abstraction known as the state; nor to the government in office, or to its party. If such national assets were to become the mouth-piece of any one or combination of the parties vying for power, democracy would be no more than a sham" (25). As regards the governing body, the National Media Commission, the Ghanaian Supreme Court stated that it was their role, "to breathe the air of independence into the state media to ensure that they are insulated from Governmental control" (26).
Many of the standards set out above reflect both the idea of independence of governing bodies and the related but slightly different idea that the editorial independence of public service broadcasting organisations should be guaranteed, both in law and in practice. Recommendation 2 of the ARTICLE 19 Measures states: "The principle of editorial independence should be guaranteed by law". In practice, editorial independence is often promoted by ensuring a clear separation between the governing body, with overall responsibility for the broadcasting organisation, and managers and editors, who have responsibility for day-to-day and editorial decision-making. The governing body may set directions and policy but should not, except perhaps in very extreme situations, interfere with a particular programming decision.
This approach is reflected in Article 1 of Recommendation No. R(96)10 of the Council of Europe, which notes that the legal framework governing public service broadcasters should guarantee editorial independence and institutional autonomy as regards programme schedules, programmes, news and a number of other matters. The Recommendation goes on to state that management should be solely responsible for day-to-day operations and should be arranged in such a way as to minimise the risk of political interference, for example by restricting its lines of accountability to the supervisory body and the courts (27). In a related vein, Articles 20-22 of the same Recommendation note that news programmes should present the facts fairly and encourage the free formation of opinions. Public service broadcasting organisations should be compelled to broadcast messages only in exceptional circumstances.
Similarly, true independence is only possible if funding is secure from arbitrary government control and many of the international standards noted above reflect this idea. In addition, public service broadcasting organisations can only fulfil their mandates if they are guaranteed sufficient funds for that task. Articles 17-19 of Recommendation No. R(96)10 of the Council of Europe note that funding for public service broadcasting organisations should be appropriate to their tasks, secure and transparent. Funding arrangements should not render the broadcasters susceptible to interference, for example with editorial independence or institutional autonomy.
ARTICLE 19’s Recommendation 3 deals with funding, stating: "Public service broadcasting should be adequately funded by a means that protects the broadcaster from arbitrary interference with its budgets". Similarly, the Italian Constitutional Court has held that the constitutional guarantee of freedom of expression obliges the government to provide sufficient resources to the public broadcaster to enable it to discharge its functions (28).