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20071230 EPIL Information and Communication, Freedom of.doc

Information and Communication, Freedom of Peter Malanczuk A. Notion 1. In guaranteeing fundamental rights and freedoms of the individual, liberal constitutions have always attached particular importance to freedom of opinion and expression, freedom of the press and freedom of information in the sense of the right of the individual to receive, impart and seek information and ideas regardless of frontiers. Freedom of expression is a broader concept than freedom of speech as it is not limited to verbal speech but may encompass any act of seeking, receiving or imparting information or ideas, irrespective of the medium used. Freedom of expression, freedom of the media and freedom of information are essential pillars for an open society, democracy and effective public participation in decision-making. There is also a close link with other democratic rights, such as freedom of association and assembly. B. Historical Evolution of Legal Rules 1. Developments before World War II 2. In classical international law the transfrontier flow of information was of no essential concern to the existence of States. National laws on -> aliens and commerce sufficed to control travellers and the influx of printed matter. The telegraph, even the wireless, did not alter the situation fundamentally. The Paris Convention of May 17, 1865 (British and Foreign State Papers, Vol. 56, p. 295) reserved parties the right to prevent the transmission of telegrammes appearing to endanger State security, the -> ordre public or to be contra bonos mores. States agreed upon necessary international technical regulations and they established competent administrative unions but they did not create specific rules on the admissible content of communications. In actual practice the transborder flow of information remained relatively free. 3. After World War I international short wave radio broadcasting began to be employed for -> propaganda, first by the Soviet Union, then by other totalitarian regimes, and from 1937 also by democracies. Receiving States often protested against such broadcasts or reacted by prohibiting their reception, limiting the frequency bands of receiving sets or even seizing the sets. Radio jamming was first used by Austria to interfere with the transmission of National Socialist propaganda programmes from Germany. 4. First attempts to regulate the content of international broadcasting (-> Broadcasting, International Regulation of) were made in the 1930s. The South American Agreement on Radiocommunications of April 10, 1935 (M.O. Hudson, International Legislation, Vol. 7, p. 47) declared illegal emissions likely to interfere with good international relations and to affect the national feelings of other peoples (Art. 7). The International Convention Concerning the Use of Broadcasting in the Course of Peace of September 23, 1936 (LNTS, Vol. 186, p. 301) was concluded under the auspices of the -> League of Nations. It aimed at preventing transmissions disturbing international understanding, incitement to war, false information and at promoting the dissemination of accurate news in times of crisis. Of the 37 States which discussed the draft, only 22 signed and 13 ratified the Convention. It remained ineffective.

2. Developments since World War II 5. Against the background of the experience prior to and during World War II with the use of the press and radio in Europe, Western States pressed for the recognition of the principle of freedom of information within the framework of the -> United Nations. In 1945 the constitution of UNESCO (-> United Nations Educational and Cultural Organization) laid down as a major objective the promotion of the free flow of information between peoples and States. At its first session, the U N General Assembly, in Resolution 59 (I) of December 14, 1946, stated emphatically: "Freedom of information is a fundamental human right and is the touch stone of all the freedoms to which the United Nations is consecrated." 6. The 1948 UN Conference on Freedom of Information, convened at the initiative of, in particular, the United States, the United Kingdom and France, attempted to reconcile ideas set out in General Assembly resolutions 59 (I) and 110 (II) of November 3, 1947, condemning all forms of propaganda involving a threat to the peace, and 127 (II) of November 15, 1947, inviting States to consider national measures to combat, within the limits of their constitutions, the diffusion of internationally harmful, false or distorted reports. The Conference prepared three draft conventions on the gathering and international transmissions of news, on an international right of correction and on freedom of information. It also adopted 43 resolutions on various issues concerning the collection and dissemination of information. All the decisions were referred to the UN Economic and Social Council for further action. 7. Art. 19 of the 1948 Universal Declaration of -> Human Rights provides: "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. This was a starting point for specific formulations of those freedoms in all subsequent human rights treaties. Between 1949 and 1954 the General Assembly also adopted a number of resolutions on various aspects of freedom of information. 8. However, with the advent of the Cold War, in the following decades Western democracies upheld in various international arenas the principle of free flow of information, against which Socialist States invoked the principles of > sovereignty and -> non-intervention, particularly with view to Western radio broadcasting (e.g. Radio Liberty, Radio Free Europe, BBC, Voice of America, Deutsche Welle) 9. While until the late 1960s UNESCO had concentrated on improving the technical capabilities of member States through programmes to develop modern communication infrastructures, in the 1970s, in response to Third World demands, its emphasis began to shift to the content of information. Fearing that advent of the information age may increase the existing communication and information disparities between North and South, developing countries, encouraged by Socialist States, in the 1970s raised the issue of a "New World Information and Communication Order". This concept was presented as an integral and essential part of the controversial demand for a -> New World Economic Order and added a new NorthSouth dimension to the dispute on free flow of information versus State sovereignty. It later fell into disarray. From 1989 onwards, UNESCO adopted a new communication strategy to encourage the free flow of information, without any obstacle to freedom of expression, and to strengthen communication capacities, particularly in developing countries. C . Current Legal Situation 1. Freedom of Broadcasting and Jamming (a) General 10. Freedom of broadcasting was established in customary international law by State practice in the inter-war period. When States protested against foreign programmes, they

did not object to the broadcasting as such but rather to specific contents. Receiving States were usually also broadcasting to other countries. Furthermore, conventions on the regulation of certain content of Radiocommunications, such as those concluded in 1935 and 1936 (see supra), only make sense under the premise that, in principle, States regarded international broadcasting as permitted. This development was a consequence of the physical fact that ether waves, whether intended for foreign reception or not, do not stop at borders. Unlike the airspace, the ether does not belong to the territory of States because it cannot be controlled. International law, therefore, rejected theories which suggested to apply the doctrine of territorial sovereignty to the ether and its use. 11. Freedom of broadcasting means that every State is entitled, in principle, to transmit radio signals across frontiers without prior consent of the affected States provided it respects the relevant international regulations on telecommunications (-> Telecommunications, International Regulation of). The latter are solely concerned with the distribution of frequencies and the avoidance of harmful interference in order to establish the technical requirements for the proper functioning of communications. They do not generally prohibit broadcasting to foreign States. There are special rules, however, dealing with -> pirate broadcasting, such as the 1965 European Agreement for the Prevention of Broadcasts Transmitted outside National Territories of January 22, 1965 (UNTS, Vol. 634, p. 239) or Art. 109 of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.; -> Law of the Sea) concerned with unauthorized broadcasting from the high seas. 12. However, customary international law also recognizes the corresponding right of affected States to interfere with the reception of foreign broadcasts by radio jamming, provided the technical effects remain restricted to their territory. The customary right to jamming is a lawful act of sovereignty and not, as sometimes described, of -> self-defence. But it can be excluded by a treaty requirement guaranteeing freedom of information. The condemnation of jamming by various United Nations organs, however, is in itself not law creative. It is controversial whether a general prohibition of jamming can be deducted from Art. 35 of the International Telecommunication Convention of November 6, 1982 (British Command Papers, Cmnd. 9557, Treaty Series, No. 33 (1985)) (-> International Telecommunications Union (ITU)). The provision stipulates that all stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other States. It is also controversial whether the customary rules on freedom of broadcasting which emerged with a view to terrestrial radio broadcasting - leaving receiving States the expensive, though technically available option of jamming - can be applied to the new technological development of direct television broadcasting satellites (-> Satellite Broadcasting; -> Geostationary Orbit). On the regional level in Europe, the 1989 European Convention on Transfrontier Television Broadcasting (ILM, Vol. 28 (1989), pp. 857-869), as amended by a 1998 Protocol (ETS No. 171), aims at ensuring the free flow of information. (b) Direct Television Satellite Broadcasting (c) Remote Sensing 2. Freedom Expression and Information in Human Rights Treaties (a) General remarks 13. In language inspired by Art. 19 of the 1948 Universal Declaration of Human Rights (see supra) the freedoms of opinion, expression and information are guaranteed on the universal level by the 1966 International Covenant on Civil and Political Rights (Art. 19), and, on the regional level, by the 1950 > European Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 10) and the 1969 >

American Convention on Human Rights (Art. 13). These treaties seem to regard the freedom to hold opinions and freedom of information as subcategories of the freedom of expression. Art. 9 of the 1981 > African Charter on Human and Peoples' Rights uses a different formulation. 14. All of the afore-mentioned treaties guarantee freedom of expression and information in general terms. Their wording does not distinguish between the different media except for the provision in the European Convention that States are not prevented from requiring the licensing of radio and television broadcasting enterprises or cinemas (Art. 10 (1)). They do not specifically enshrine freedom of the press. However, there are marked differences as to the content and practical relevance of the rights they lay down in often similar terms. (b) International Covenant on Civil and Political Rights 15. While there is no specific limitation of the freedom of opinion in Art. 19 (1) of the Covenant, the exercise of the freedoms of expression and information provided in Art. 19 (2), according to paragraph 3, "carries with it special duties and responsibilities". It may be subject to restrictions by law if necessary to protect the rights and reputation of others (-> Intellectual Property, International Protection), national security, public order (ordre public), public health or morals. Any construction of Art. 19 must start from the premise that the guarantee of rights in Art. 19 (2) is the rule and Art. 19 (3) only the exception thereto. Moreover, Art. 20, calling for the prohibition by law of propaganda for war (-> Propaganda for War, Prohibition) and advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence, can hardly serve as a sound basis for extensive restrictions. Exceptions cannot be used to undermine the essence of a right. Nevertheless, Art. 19 (3) is a compromise formulation. Its function is to accommodate quite divergent interpretations, and in the practice of some States it has been frequently invoked as a sweeping reservation of State sovereignty. 16. In 1993 the UN Commission on Human Rights established the office of the UN Special Rapporteur on Freedom of Opinion and Expression. (c) European Convention on Human Rights 17. There is a considerable body of case-law on the meaning of Art. 10 of the European Convention on Human Rights which finds no counterpart under the other international human rights instruments. The -> European Court of Human Rights has repeatedly emphasized the crucial social and political function of the rights in Art. 10 as essential foundations of a democratic and pluralistic society (Handyside case 1976 A 24; Sunday Times case 1979 A 30). This perspective bears significantly upon the construction of the restrictive clause in Art. 10 (2). The list of reasons justifying restrictions is similar to but longer than the one in Art. 19 (3) of the Covenant. In actual fact, however, the possibility of restricting the freedoms of expression or information is far more limited than under the Covenant. According to the jurisprudence of the organs of the European Convention any restriction must not only have a legal, though not necessarily formal, basis in the sense of meeting a pressing social need and the requirement of proportionality , but also be "necessary in a democratic society", a condition which is laid down explicitly in Art. 10 (2). This requirement, interpreted narrowly by the Court, limits considerably the margin of appreciation which States enjoy in assessing the reasons for restricting the freedoms in Art. 10 (1). 18. As noted by the European Court of Human Rights, [f]reedom of expression constitutes one of the essential foundations of a democratic society and one of the conditions

for its progress and for each individuals self-fulfilment. Subject to parargraph 2, 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society. As set forth in article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (Raichinov v. Bulgaria 47579/99 [2006] ECHR 454 (20 April 2006), para. 47). 19. Under the European Convention there is a clear right of individuals to receive with the means available to them information of any legally established foreign media. There is a duty upon States not to resort to the jamming of foreign broadcasts the content of which is within the liberal scope of the Convention. Furthermore, important clarifications have been given by the European Court of Human Rights in two cases filed against Switzerland. In both the Groppera Radio AG Case (Judgment of March 28, 1990 - 14/1988/158/214), concerning restrictions on the distribution of radio programmes by cable operators, and in the Autronic AG Case (Judgment of May 22, 1990 - 15 / 1989 / 175/231), dealing with restrictions on the reception of foreign satellite television broadcasts, the Court adopted a liberal approach and set land-marks for the use of these new media. It should be noted that in 2003 the Council of Europe adopted a Declaration on freedom of communication on the internet. (d) American Convention on Human Rights 20. In contrast to the non-binding American Declaration of the Rights and Duties of Man of May 2, 1948 (AJIL, Vol. 43, Supp. (1949) p.133) which pro-claimed only briefly that every person has "the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever" (Art. IV), the American Convention on Human Rights has adopted more complete and complex provisions. Art. 13 (1) guarantees the right to freedom of thought and expression including freedom of information. Art. 13 (2) contains a rather unique provision as compared with other human rights treaties and expressly prohibits prior censorship as to the exercise of those rights with the qualification, however, that public entertainment may be subject by law to such control "for the sole purpose of regulating access to them for the moral protection of childhood and adolescence" (Art. 13 (4)). 21. Authorizing the "subsequent imposition of liability", Art. 13 (2) contains a reservation clause the wording of which is modelled after Art. 19 (3) of the International Covenant on Civil and Political Rights and therefore less precise than that of Art. 10 (2) of the European Convention. There is, however, nothing comparable in the other human rights treaties to Art. 13 (3) of the American Convention which stipulates that the right of expression "may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies. or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions". This provision expressly prohibits jamming and must be read in conjunction with Art. 13 (5) which serves purposes similar to those of Art. 20 of the International Covenant. Art. 14 of the American Convention explicitly establishes and regulates in more detail a right of an individual offended by a medium to reply or make a correction. 22. In 1997 the Inter-American Commission on Human Rights established the institution of a OAS Special Rapporteur on Freedom of Expression. It also created a Voluntary Fund for Freedom of Expression to support the Special Rapporteur, (e) African Charter on Human and Peoples Rights 23. The 1981 > African Charter on Human and Peoples' Rights states that every individual shall have the "right to receive information" (Art. 9 (1)) and "to express

and disseminate his opinions within the law" (Art. 9 (2)), subject, however, to the "duties" of the individual as set out generally in Arts. 27 to 29. In 2002 the African Commission on Human Rights and Peoples Rights adopted a Declaration of Principles of freedom of Expression and in 2005 it decided to appoint a Special Rapporteur on Freedom of Expression in Africa. 3. Selected other instruments 24. There are a number of multilateral treaties dealing with the rights of specific groups which expressly or implicitly protect their rights to freedom of expression, such as the 1965 International Convention on the Elimination of all Forms of Racial Discrimination (Art. 5), the 1979 Convention on the Elimination of Discrimination Against Women (Art. 3) and the 1989 Convention of the Rights of the Child (Art. 13). 25. Furthermore, in the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe East and West confirmed the fundamental freedoms of expression and information and agreed upon the wider dissemination of information of all kinds. These rights then played a prominent role in the subsequent follow-up of the Helsinki Process, although the documents remained non-binding. In 1997 the -> Organization for Security and Cooperation in Europe (OSCE), with 55 participating States from Europe, Central Asia and North America, then established a OSCE Representative on Freedom of the Media. 26. Under the 1953 Convention on the International Right of Correction a State affected by a false or distorted news dispatch may submit its version of the facts to States within the territories of which such dispatch has been published or disseminated. The receiving State is obliged to release the communiqu to the correspondents and information agencies operating in its territory, but the Convention does not impose an obligation on the press or other media to publish it. The Convention, ratified by only a few countries, is largely ineffective. 27. Finally, an area that has gained more and more importance is the right of access to information. This issue was included in the 1996 Johannesburg Principles on National Security, Freedom of Expression and Access to Information. The Principles were drawn up by a group of international law experts and then endorsed by The UN Special Rapporteur on Freedom of Opinion and Expression in his 1996 annual report. D. Concluding Remarks 28. The traditional notions of information and communication have been shaped primarily by reference to the press and terrestrial broadcasting. Profound changes in communications technologies with a global impact have challenged this notion. These changes include the use of satellite communications for direct television broadcasting and -> remote sensing from -> outer space. They also include the combination of computer and communications systems in the form of telematics which enormously advances the capacity for producing, stocking and circulating information and knowledge and has led to a huge increase in transborder data flows. 29. The spread of new technologies and the emergence of the internet as a public network have led to a discussion of the transformation from a global information society to a knowledge society while overcoming existing global disparities in this process and securing the two pillars of access to information for all and freedom of expression. Furthermore, the growing use of units of information coded electronically for processing by one or more digital computers which transfer almost instantaneously or process information in more than one State has led to the competition and often conflict between the two objectives of the promotion of the free flow of information and the protection of the privacy of the individual ( -> Data, Transboundary Flow, International Protection).

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