International standards: Regulation of the print media

As with standards on the protection of media workers, there are two central themes to international standards on the regulation of the print media:

1. The need to assure that the authorities do not try to muzzle critical voices or to give unfair benefits to favoured media workers
2. A concern that the right to freedom of expression will too easily be pushed aside when it comes into conflict with other legitimate interests.

Is there a need for statutory regulation? 

Governments in many countries see it as their task to develop complex regulation for every aspect of a society’s life, including the mass media. But even when its goal is to safeguard the right to freedom of expression, legislation affecting the media often creates bureaucratic obstacles and loopholes for abuse by those implementing it.  Part of the purpose of the necessity test (i.e. that even if a restriction is in accordance with an acceptably clear law and if it is in the service of a legitimate aim, it will still breach the right to freedom of expression unless it is truly necessary for the protection of that legitimate aim) is to prevent governments from following their ‘legislative instinct’, and to make sure that the amount of regulation concerning the media is kept to a minimum.

It is notable that most established democracies do not have a law which imposes specific regulatory measures on the print media. This is due to a deliberate policy to prevent unnecessary regulation and to distinguish the press from the broadcast media, where different considerations apply.

Clearly, the print media cannot operate in a legal vacuum. A newspaper’s employees must be guaranteed acceptable working conditions, publishers must be prevented from pirating others’ works, individuals affected by a defamatory news story should be able to sue for compensation, and so on. But none of these matters raises concerns unique to the print media: employer-employee relationships exist in every company, not only printed works are pirated, and defamatory remarks can also be made through other media or in public. In contrast to the broadcast media – where there are technical constraints on the number of channels – the print media present very few distinctive features which demand a regulatory response.

As a result, many democracies have chosen to abolish their press laws and treat print media companies like any other enterprise, regulating them through laws of general application, such as the civil code and labour law. If there is no press law, the reasoning goes, there will also not be legal means available for restricting press freedom. This is not to say that a press law can never be consistent with international law; in practice, however, such laws almost always contain some illegitimate restrictions on who may publish and what may be published, or duplicate provisions in laws of general application, sending a chilling ‘double warning’ to the press. The following sections discuss problematic types of provisions often found in press laws, and then discuss an alternative model: self-regulation by the media.

Licensing and registration requirements

For the same reasons as apply in the context of licensing of individual media workers, a licensing scheme for the print media which allows for permission to publish to be refused is a breach of international guarantees of the right to freedom of expression.

The establishment of a publication is clearly an important way of “imparting information and ideas” and so an exercise of the right to freedom of expression. A licensing scheme presents an obstacle to this activity, which may range from a minor bureaucratic hurdle to an impassable barrier (if the licence application is rejected). Such a scheme is, therefore, an interference with the right to freedom of expression, and must therefore meet the three-part test in order to be justifiable.

Licensing schemes may address some legitimate goals, such as preventing publications which are defamatory. Nevertheless, the requirement of ‘necessity’ means, amongst other things, that the government should choose those means to achieve its goals which are least harmful to freedom of expression. A decision to deny someone a licence amounts to a blanket prior ban on all of the articles that person would otherwise have published. It is, almost by definition, not the least restrictive means available to the government: offensive articles can also be dealt with on a case-by-case basis, after publication, and be responded to with a fine or some other sanction. Moreover, licensing schemes are problematic because they may easily be abused, for example to prevent opponents of the government from voicing their opinions. This is particularly true if the scheme is administered by a non-independent body and there are no clear criteria for the awarding of licences. Even an independently administered licensing scheme can induce media outlet to practice self-censorship, for fear of losing their licence.

The UN Human Rights Committee has repeatedly expressed its concerns at licensing requirements for the print media, holding that they constitute a violation of the right to freedom of expression. In 1999, for example, the Committee noted, in respect of Lesotho’s regular report:

The Committee is concerned that the relevant authority under the Printing and Publishing Act has unfettered discretionary power to grant or to refuse registration to a newspaper, in contravention of article 19 of the Covenant.^[1]

The UN Committee on the Rights of the Child, a body similar to the HRC which oversees the UN Convention on the Rights of the Child, has criticised Uzbekistan’s stringent licensing requirements:

In the light of article 13 (the child’s right to seek, receive and impart information) … the Committee is concerned that stringent registration and licensing requirements for the media and publications, as well as restrictions on Internet access, do not comply with article 13, paragraph 2, of the Convention.^[2]

Distinct from licensing regimes are technical registration schemes, which still exist in some established democracies. A technical registration scheme is a purely administrative requirement for publications to provide basic information about themselves to the authorities, such as the location of their offices, and the names of their owners, with no discretion on the part of the government to refuse registration. The purpose of a registration scheme is usually to ensure that individuals who intend to sue a publication for defamation can easily determine where to send their complaint.

Registration schemes ostensibly pose less of a threat to freedom of expression than licensing schemes, because they do not allow the government to deny registration on the right to publish. Nevertheless, they can and have been abused, leading international bodies to express reservations about their legality.  A case which came before the HRC from Belarus provides a good example. The applicant complained about a legal requirement for newspapers with a circulation of just 200 copies to register; he had been prosecuted for the distribution of unregistered pamphlets, which had been confiscated. In its analysis of the complaint, the HRC first clarified that the registration requirement in itself constituted a clear interference with the right to freedom of expression, which therefore needed to be justified:

The Committee notes that … publishers of periodicals … are required to include certain publication data, including index and registration numbers which, according to the author, can only be obtained from the administrative authorities. In the view of the Committee, by imposing these requirements on a leaflet with a print run as low as 200, the State party has established such obstacles as to restrict the author’s freedom to impart information.^[3]

The Committee was very sceptical of Belarus’ claim that the registration requirement was necessary to protect public order or the rights of others, stating:

In the absence of any explanation justifying the registration requirements and the measures taken, it is the view of the Committee that these cannot be deemed necessary for the protection of public order (ordre public) or for respect of the rights or reputations of others.^[4]

Finally, the Committee was highly critical of the fact that the applicant’s failure to register had resulted in a fine as well as confiscation of the remaining copies of the publication.^[5]

Other bodies have expressed themselves in similar terms. The UN, OAS and OSCE special mandates on freedom of expression have, for example, declared: “Imposing special registration requirements on the print media is unnecessary and may be abused and should be avoided.”^[6] The European Court of Human Rights has criticised a Polish registration requirement which allowed the authorities to refuse registration if the proposed name was “inconsistent with the real state of affairs.” It stated that such a requirement is “inappropriate from the standpoint of freedom of the press.”^[7]

To summarize, licensing schemes for the print media are inconsistent with international law because they fail to meet the ‘necessity’ test. Registration schemes are not illegitimate per se, but it is clear from the authorities cited above that any such scheme must minimally restrict freedom of expression and consist of a simple, automatic procedure.

Suspensions and bans

Permanently banning or temporarily suspending a print media outlet is a highly intrusive interference with the right to freedom of expression, similar to depriving an individual of the right to practise journalism. If the right to suspend or ban rests with an administrative body, this amounts to a licensing power, and is accordingly a violation of international law. But even when ordered by a court, it is doubtful whether a ban or suspension can be justifiable. It amounts to the wholesale abrogation of the concerned publication’s right to free expression, when less extreme measures are likely to be available, such as the imposition of a fine, seizure of an individual issue or criminal measures against those responsible.

Legislative measures which deprive media outlets of the possibility to distribute their publication are, for all intents and purposes, equivalent to a publication ban, and so on similarly unstable legal grounds. The US Supreme Court has remarked: “Liberty of circulating is as essential to the freedom of speech as liberty of publishing; indeed without the circulation the publication would be of little value.”^[8] .”^[9] Similar considerations led the European Court of Human Rights to condemn a ban on distribution of a magazine in Austrian army barracks in the case of Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria.^[10] The Court found no evidence for the Austrian government’s allegation that the magazine in question posed a threat to national security; in particular, it did not recommend disobedience or violence. Despite its polemical tone, the magazine did not overstep the bounds of what should be permitted in the context of discussion of ideas within the army of a democratic State.^[11]

Mandatory provision of copies

There can be little justification for a duty to provide copies to a ministry or other governmental body. The danger that such a requirement will be used as a vehicle for censorship is obvious, and it is hard conceive of any other reason why the government would find it necessary to have copies of every publication in the land. A deposit requirement can also have a chilling effect, since commentators may be more reluctant to speak their mind about the government if they know it is keeping a close watch on their words.

Deposit requirements relating to the national library serve a more easily identifiable legitimate goal, namely to ensure the availability of diverse sources of information to the public. As such they could be said to promote the right to freedom of expression, and are arguably consistent with international law.^[12]

An alternative model: self-regulation

The discussion in the previous sections underscored the dangers of government regulation of the press; all too often, legislation which ostensibly serves a legitimate goal becomes a tool for suppressing critical voices. This section explores the alternative: self-regulation by the print media

The passage of time can help address problems of highly unbalanced, poorly researched or outright defamatory articles. If the general public is initially intrigued by sensationalist or provocative reporting, this interest will likely wear off over time as people start to distinguish between quality news outlets and the “gutter press”. In all of the established democracies there is a residual market for such publications, but since they are seen more as a source of entertainment than of reliable information, the threat posed by them is too minor to justify restricting free speech.

On the other hand, no publication is immune from unethical or unprofessional reporting, and some form of oversight over journalistic activities may well serve the public good. The problem is that governments lack the ability to act as impartial enforcers of professional standards, given their frequently adversarial relationship with the media.

To resolve this conundrum, journalists and publications in many democracies have taken it upon themselves to regulate the print media sector. They have established private mechanisms, usually called ‘press councils’, with a mandate to raise journalistic standards and to provide redress against unprofessional or simply inaccurate reporting, thus forestalling the need for government regulation. The activities of press councils usually consist of standard-setting through the adoption of a code of conduct or code of practice, education of media workers and the general public about this code, and adjudication of complaints submitted by members of the public.

In most cases, the only ‘sanction’ available to press councils is to require the offending media outlet to print their decision finding a breach of the code. Press councils lack the enforcement powers of statutory bodies and therefore rely on voluntary compliance with their decisions. But as they are composed of individuals with special expertise on the media, and apply rules which have been established after a dialogue within the sector, most media practitioners take the decisions of press councils seriously and are willing to publish a reply, correction or statement when such action is recommended. Furthermore, the peer pressure to improve and embarrassment that a contrary holding can produce can be very effective in promoting greater professionalism. The success of self-regulatory mechanisms in several countries has prompted the African Commission on Human and Peoples’ Rights to declare that:

[e]ffective self-regulation is the best system for promoting high standards in the media.^[13]

Paradoxically, a number of governments have attempted to embrace this recommendation by mandating the establishment of self-regulatory bodies, and threatening media workers with criminal prosecution if they violate the ethical rules adopted by these bodies. Clearly, any kind of regulation coerced by the government is not self-regulation, but at best statutory regulation by the profession itself, and therefore vulnerable to many of the same abuses as other forms of statutory regulation.

Nevertheless, there are prudent ways in which the State can encourage self-regulation. For example, courts can be required to take the findings of a press council into account when ruling in a defamation case. If the media outlet in question has previously complied with a recommendation to publish a correction or statement, any defamation award should be suitably reduced. A press council can also be given the right to comment on any legislative proposals affecting the print media.

While there is probably no perfect model of self-regulation, these observations appear to hold true based on the comparative experience of several countries.

•  A self-regulatory mechanism should cover the print media sector as widely as possible. The power of the sector as a whole to exert positive pressure for professionalism is greater than that of a club of like-minded publications.

•  The self-regulatory body should strive to develop a single national code of conduct, in consultation with a wide range of stakeholders, and, in particular, other representative media bodies, such as journalists’ unions or associations.

•  At a minimum, a code of conduct/ethics should address the following:
  respect for the public’s right to know;
  accuracy in news gathering and reporting;
  fairness in methods to obtain news, photographs and documents;
  sensitivity in reporting on vulnerable groups such as children and victims of crime;
  non-discrimination in relation to race, ethnicity, religion, sex and sexual orientation;
  respect for the presumption of innocence in reporting on criminal procedures;
  protection of confidential sources of information;
  duty to rectify published information found to be inaccurate of harmful.

•  Careful consideration should be given to who should sit on the complaints body. Some of the more successful councils have broad membership, including members of the public as well as media owners and journalists.

•  The complaints body should provide quick, free resolution of complaints through an open process. While both sides should be allowed a sufficient and equal opportunity to present their views, the procedure should not be complex and legalistic.

•  The self-regulatory mechanism should ideally be funded by the print media sector itself and, on an annual basis, fully disclose its operational budget.