Right/Freedom of the Press/Culture and Politics

Freedom of the Press

History | Legal Codification | Philosophical Origins | Culture and Politics | Conflicts with other Rights | Limitations / Restrictions | Utilitarian / Fairness Assessments | Looking Ahead | Policy Recommendations

Is there general and widespread belief that this right is a fundamental right that should generally be protected (and that exceptions should be rare)? 🖉 edit

Generally, exceptions to freedom of the press have been rare in the USA. In Britain, somewhat more relaxed libel laws leave organs of the media more open to suits. However, both consider rare exceptions to these tendencies (Shapiro 2015). In both nations, there are arguments to push more towards the other country’s position. In the United Kingdom, libel law was used to take a U.S. author to court for their writing. This form of “libel tourism” is common due to the ability to sue writers and the press for libel in the UK, increasing the odds of the prosecution winning (Shapiro 2015). The UK’s successful suing of the author in this libel case caused the United states to create Rachel’s Law. This prevented the upholding of the UK ruling in the United States (Glanville 2008). This law in particular is a standard example of the U.S. maintaining greater protections of freedom of the press. In more recent years, the UK has moved closer to stricter libel laws, similar to the United States. The High Court in London dismissed the complaint that journalist Carole Cadwalladr defamed businessman and pro-Brexit movement founder Arron Banks, marking a huge victory for public-interest reporting. This 2022 case served as a major win for stricter exceptions to freedom of the press (“UK: Journalist’s Victory in Libel Case Endorses Media Freedom” 2022). In the case of the Dominion Voting System versus Fox News, libel laws were essential for the Fox defamation lawsuit (Peltz and Riccardi 2023). The court papers even expressed a profound concern about the broadcaster's actions, likely prompting the settlement money Fox eventually gave to Dominion (Peltz and Riccardi 2023). This demonstrates a certain level of ability to meet the standard for libel/defamation suits in the U.S. For most countries, arguments against freedom of speech and of the press can be broken down into national security, fake news and misinformation, privacy & ethics, sensationalism for profit, and hate speech and incitement (“The Ongoing Challenge to Define Free Speech” 2023). The complicated and ongoing discussion over how to strike a balance between these issues and press freedom protection differs from nation to nation and reflects various cultural, legal, and political settings. Lately, societies have seen the real world consequences of these freedoms and the exceptions to them. However, Informing the public, promoting democracy, and holding governments responsible all depend on a free press. In order to prevent suffocating free speech, encouraging censorship, or smothering dissenting voices, restrictions on press freedom must be carefully considered. Because technology has grown at a pace too rapid for regulation and societal understanding keep up, it has led to issues with misinformation interfering with governmental processes. Deepfakes have been among these developing concerns. Political experts worry that in order to influence an election, political strategists may create attack commercials utilizing computer-generated "deepfake" films and audio, which they may then release at the last minute (McKenzie 2023). France has made media regulations to aid in preventing election misinformation. French officials urge news organizations and the public to refrain from sharing any information during the media blackout period required by electoral regulations. These electoral regulations are a noticeable exception that were put in place after Macron’s emails were leaked in a hack prior to the 2017 election. There is now a 44 hour blackout of media before all major French elections (“France Doubles Down on Countering Foreign Interference Ahead of Key Elections” 2021).

Bibliography

“France Doubles Down on Countering Foreign Interference Ahead of Key Elections.” 2021. Accessed October 27, 2023. https://www.lawfaremedia.org/article/france-doubles-down- countering-foreign-interference-ahead-key-elections-0.

Glanville, Jo. 2008. “‘Rachel’s Law’ Protects Free Expression.” Index on Censorship. April 2, 2008. https://www.indexoncensorship.org/2008/04/rachels-law-protects-free-expression/.

McKenzie, Bryan. 2023. “Is That Real? Deepfakes Could Pose Danger to Free Elections.” UVA Today, August 24, 2023. https://news.virginia.edu/content/real-deepfakes-could-pose-danger-free-elections.

Peltz, Jennifer, and Nicholas Riccardi. 2023. “How Election Lies, Libel Law Were Key to Fox Defamation Suit.” AP News, April 18, 2023. https://apnews.com/article/fox-news-dominion-lawsuit-trial-explainer-trump-fbd401a951905879d837a8860b3bec5e.

Shapiro, Ari. 2015. “On Libel And The Law, U.S. And U.K. Go Separate Ways.” NPR, March 21, 2015. https://www.npr.org/sections/parallels/2015/03/21/394273902/on-libel-and-the-law-u-s-and-u-k-go-separate-ways.

“The Ongoing Challenge to Define Free Speech.” Accessed October 6, 2023. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/the-ongoing-challenge-to-define-free-speech/.

“UK: Journalist’s Victory in Libel Case Endorses Media Freedom.” 2022. Article 19. June 13, 2022. https://www.article19.org/resources/uk-journalists-victory-endorses-media-freedom/.

Is this right exercised in different ways depending on the political governance regime in place (democracy, autocracy, hybrid regime)? 🖉 edit

Freedom House called freedom of the press “a cornerstone of global democracy” and others have deemed it crucial (Abramowitz, 2017, 2; Whitten-Woodring, 2009, 595). But does that mean regime affects how this right is exercised? Regime affects the institutions and framework around the media and freedom of the press (Stier, 2015, 1273) . Democracy, government legitimacy, and free press are generally connected as there are easier ways to criticize, advocate for change, and hold leaders accountable (Whitten-Woodring, 2009, 596). Research backs this up. In a study of states from 1948- 1995, 82% of democracies had free press and 88% of autocracies had controlled press; The correlation between free or controlled media and regime type is 0.74, a moderately strong score (Whitten-Woodring, 2009, 602, 619). A 1993- 2010 study found a correlation between these variables as well (Stier, 2015, 1273) . Most argue that this is due to the increased legitimacy, transparency, and accountability – all things necessary in a healthy democracy. There were notable exceptions in these trends: Mexico, Uganda, and Turkey.

Democracies

Turkey, a multi-party democracy for almost 70 years, ranked highly on Freedom House’s democracy scale from 1993- 2004, has heavily censored media since a 2016 coup attempt (Repucci, 2019) . News outlets have closed, the internet has become restrictive and government-censored, and traditional media platforms have become unavailable (Repucci, 2019) . There is still local press, but accessibility has declined, requiring the use of workarounds, such as VPNs and social media rather than traditional local news sources, such as newspapers (Repucci, 2019) .

In Germany, board members of news outlet ZDF were supportive of the Christian Democratic Union (CDU) party, but their Editor-in-Chief was not (Stier, 2015, 1277) . ZDF is Germany’s national public broadcaster and is “a leading source of information,” providing a comprehensive view of the state (Facts and figures about ZDF, 2021) . The board did not renew his contract, likely because he was critical of the government and a talented investigator, leading him to uncover instances that were not politically advantageous for the CDU. This claim that an Editor-in-Chief did not have a contract renewed for holding different political views isn’t great for the free press narrative, especially when nearly half of the council works for the government (Facts and figures 2020, 2020) .

Autocracies

Autocracies control media to ensure the survival of the regime. Thus, there are two prevailing media policies in autocratic states with controlled press: prevent discussion regarding the exercise of power and strictly control opposition organizations and efforts (Stier, 2015, 1277) . Under these policies, controlled media can also help promote the government’s rule and agenda (Whitten-Woodring, 2009, 601). There are, however, instances of strategic censorship, in which autocracies allow minimal elements of media freedom. These policies have a similar goal as one-party states holding elections – achieving a look of democracy (Stier, 2015, 1278) . When this control is relinquished too quickly, it can have unintended consequences. In a well-known instance, Mikhail Gorbachev implemented freer press and expression in the Soviet Union in the late 1980s with his glasnost policy (Stier, 2015, 1279) . Under the communist autocracy in place and with significantly fewer media regulations, this new freedom aided a rapid decline within the state as government mismanagement became revealed (Stier, 2015, 1279) .

Generally, free press happens accidentally; this was the case in Mexico and Uganda. In the 1980s , Uganda media began asserting independence against the US in a partisan way against the new government, prompting a “media war” (Whitten-Woodring, 2009, 601). In the mid- 1980s , the Moseveni government came into power. This government was liked better by the media, but when the new Moseveni government began human rights violations, the media still reported it. Moseveni tried to shut them down, but the media retained their independence (Whitten-Woodring, 2009, 601). Under Mexican autocratic rule in the 1990s , the media began to criticize the government and assert independence (Whitten-Woodring, 2009, 614). This trend accelerated in the late 1990s with more aggressive media tactics, with journalists putting themselves at risk (Whitten-Woodring, 2009, 614). On the other hand, Stier ( 2015, 1280) acknowledges that long-lasting, autocratic regimes, such as monarchies, have the benefit of being prosperous and well-liked. These characteristics, along with a strong military presence, limit the chance of being overthrown and can lead to more press freedoms (Stier, 2015, 1280) . Accordingly, autocratic characteristics that are associated with fewer media freedoms are communism and one-party systems (Stier, 2015, 1281) .

References:

Abramowitz, M. (2017, Apr.). Freedom of the press 2017. Freedom House. https://freedomhouse.org/sites/default/files/2020-02/FOTP_2017_booklet_FINAL_April28_1.pdf

Facts and figures 2020. (2020). ZDF. https://www.zdf.de/zdfunternehmen/factsandfigures-100.html

Facts and figures about ZDF (2021, April. 20). ZDF. https://www.zdf.de/zdfunternehmen/factsandfigures-100.html

Repucci, S. (2019). Freedom and the media 2019. Freedom House. https://freedomhouse.org/report/freedom-and-media/2019/media-freedom-downward-spiral.

Stier, S. (2015). Democracy, autocracy and the news: the impact of regime type on media freedom. Democratization, 22(7), 1273-1295. https://dx.doi.org/10.1080/13510347.2014.964643

Whitten-Woodring, J. (2009). Watchdog or lapdog? Media freedom, regime type, and government respect for human rights. International Studies Quarterly 53, 595-625. https://doi.org/10.1111/j.1468-2478.2009.00548.x

ZDF. (2021, Aug. 21). Wikipedia. Retrieved Sept. 7, 2021, from https://en.wikipedia.org/wiki/ZDF

Is this right interpreted and exercised in different ways in different countries? Focus on particular countries in which the right is interpreted distinctively 🖉 edit

In 2017, Freedom House estimated that only 13% of the world’s population lived in states with free press (Abramowitz, 2017, 8). Thirteen percent is low and creates little incentive for less-free media states to improve media freedoms (Abramowitz, 2017, 16). 45% of the population lived in states with ‘not free’ press, while 42% of the population lived in states with ‘partly free’ press (Abramowitz, 2017, 8). Freedom House defines free press on a spectrum, with free press being an environment that allows the right to seek and distribute information without interruption or censorship. These can take many forms, such as arresting or threatening journalists, being influenced by the government (monetarily or otherwise), or restricting access to news sources (i.e., disabling the internet) (Repucci, 2019) . The presence of these elements decreased media in the state and hinders citizens’ ability to get impartial information. In 2017, free states were, generally, the United States of America, Canada, Australia, and Western Europe (Abramowitz, 2017, 14-15). Partially free states were prominent in South America, Southern Africa, Western Africa, Oceania, Central America, and Central and Eastern Europe, with the additions of India and Mongolia (Abramowitz, 2017, 14-15). Not free states were common in Eastern Africa and Asia (Abramowitz, 2017, 14-15). Freedom of expression is called for and agreed upon in many international conventions: the European Convention on Human Rights (ECHR) Article 10, International Covenant on Civil and Political Rights 19, American Convention on Human Rights Article 13, and the African Charter of Human Rights Article 9 (ARTICLE 19, 2004, 2). The United Nations Universal Declaration of Human Rights explicitly calls out freedom of the press (ARTICLE 19, 2004, 2; Stier, 2015, 1274) . These conventions and declarations pave the way for freedom of the press in many states, though it is recognized that freedom of expression may be limited, mostly for the protection of something or someone. Exceptions, according to the Human Rights Committee, must be provided by law to safeguard a legitimate interest and must also be necessary to secure this interest (ARTICLE 19, 2004, 2).

Free: Though credited with some of the freest press in the world in 2017, freedom of the press in the United States looked to be declining (Abramowitz, 2017, 1). Factors such as media polarization, mistrust, undermining, and profit-motivated media coupled with changing business models were contributing factors in this decline, though constitutional checks prevented even more decline (Abramowitz, 2017, 1). Additionally, recent presidents’ actions have trended toward more restrictive of the media (Abramowitz, 2017, 1-2). Despite the Freedom Act of 2015, media monitoring is prominent in the United States, as well as other free media states such as Canada, Britain, Germany, and France, and becomes more prominent with less free media (Abramowitz, 2017, 16).

Partly Free: In partly free media states, generally, media is not explicitly restricted or censored, but actions taken by the government have demonstrated restrictions. In Hungary, pro-government media was monetarily rewarded by Hungary’s government was only selling stories to specific media outlets (Abramowitz, 2017, 6; Banks, 2020) . These actions “unfairly starved independent media channels” while publicly funding channels that were politically advantageous to the government (Banks, 2020) . This practice began after Hungary adopted a new constitution in 2011 and the incident was taken up for investigation in accordance with the ECHR in 2020 after multiple complaints (Banks, 2020) . Brazil used five journalists’ trials as a warning toward journalists and potential stories rather than explicitly restricting the media (Abramowitz, 2017, 21). The five journalists were taken to court for 50 counts exposing the high earnings of judiciary members but placed the trials all over the country (Abramowitz, 2017, 21). This action imposed a large monetary and temporal cost on the journalists, causing journalists to think twice about a story before publishing.

Not Free: The ten states with the least amount of press freedom are North Korea, Uzbekistan, Turkmenistan, Crimea, Eritrea, Cuba, Equatorial Guinea, Azerbaijan, Iran, and Syria (Abramowitz, 2017, 9). States such as these have restrictive media guidelines, such as media monitoring or elimination. In many states, from Ethiopia to Zimbabwe to Turkey, media has been shut down at crucial political moments such as elections or protests (Abramowitz, 2017, 5, 9, 20). Turkey is a state with constitutional protection of media, though it has laws that contradict this protection and criminalize reporting on some topics (Whitten-Woodring, 2009, 599). In Egypt, the military influences the media, preventing private, independent media (Abramowitz, 2017, 17). In Syria, many journalists are exiled, and many surrounding states make it difficult for them to continue their work (Abramowitz, 2017, 4). In Venezuela, some actions against the media have consisted of preventing international journalists from covering a planned protest and reacting with violence when some chose to cover it anyway (Abramowitz, 2017, 13). Russia and China are restrictive of their press with both censorship and market influence, but they take advantage of the freedoms in the United States and France to try to influence perceptions in these areas for their state’s political gain (Repucci & Slipowitz, 2021; Stier, 2015, 1275) . Russia takes similar actions with its Russian-speaking neighbors, especially Ukraine, for similar reasons, and has begun to try to influence the EU as well (Abramowitz, 2017, 9). China is also restrictive due to its very strict penalties and monitoring for criticism, while also preventing its people from giving information to outside sources (Abramowitz, 2017, 16).

Exceptions

Exceptions to freedom of the press vary between states. Pew Research Center found that Americans are most likely to accept all types of free speech and people in most states are content with protecting speech against the government under freedom of expression, even if it may cause instability (Poushter & Givens, 2015) . However, this acceptance varies by region; there is over 90% support for this idea in North American and Europe, while there is less support, around 70% in the Middle East, Asia, the Pacific, and Africa (Wike & Simmons, 2015) . Exceptions begin to appear beyond these boundaries (Wike & Simmons, 2015) . For instance, support for being able to say offensive words to minorities or about religious beliefs is below 50% in all regions of the world surveyed except for the United States and Canada (Wike & Simmons). Exceptions against freedom of the press with the most support are comments that are sexually explicit or call for violent protests. Each of these types has less than 40% support to be a protected form of speech (Wike & Simmons, 2015) . Defamation: Most common in media is defamation law, in which strictness varies between states based on the written laws, strictness of implementation, burden of proof, and punishment (Botsford). Internationally, defamation’s burden of proof is typically just the intent to make the statement, not that it was made in bad faith (Botsford). In most places, defamation is a criminal offense, though there are some advocates for a change toward a civil offense (Botsford). Defamation charges are somewhat common with just over half of EU states convicting a journalist of defamation between 2010 and 2015, though imprisonment was rare, and some states have such laws but do not enforce them (Botsford).

Investigation for defamation can be very disruptive due to the seizure of personal and professional assets, preventing further journalism at the time (Botsford). Libel and insult charges against Russian Mikhail Afanasyev resulting from a piece he authored were quite disruptive to the media in the region (Botsford; Committee to Protect Journalists, 2013) . In the piece, Afanasyev claimed that Alexander Zlotnikov, who had testified to a court that Afanasyev had attempted to record a police arrest and was obstructive while doing so, was lying and immoral, among other things (Committee to Protect Journalists, 2013) . A defamation claim was immediately filed against Afanasyev, and a four-month investigation commenced (Committee to Protect Journalists, 2013) . Despite his eventual acquittal, the Russian investigation into Mikhail Afanasyev ruined media in his region of Siberia, as he was the only independent source (Botsford). This instance was not the first time he was targeted for his work at the Novy Fokus (Committee to Protect Journalists, 2013) . Turkey also strictly implements defamation law, so that it not only is affecting journalists but those in other professions as well (Botsford). Italy, a partly free media state, routinely uses these laws and imprisons journalists for libel – the only EU state to do so (Botsford). On the other hand, Ireland and the United Kingdom, free media states, have repealed their libel laws, and South Africa, a partly free media state, has taken steps to eliminate the law as well (Botsford).

References:

Abramowitz, M. (2017, Apr.). Freedom of the press 2017. Freedom House. https://freedomhouse.org/sites/default/files/2020-02/FOTP_2017_booklet_FINAL_April28_1.pdf

ARTICLE 19. (2004, Feb.). Briefing note on international and comparative defamation standards. https://www.article19.org/data/files/pdfs/analysis/defamation-standards.pdf

Banks, M. (2020, Oct. 26). EU investigating whether Hungarian state aid spending is undermining media freedom. https://www.theparliamentmagazine.eu/news/article/eu-investigating-whether-hungarian-state-aid-spending-is-undermining-media-freedom

Botsford, P. (n.d.). Word crimes – defamation and freedom of expression. International Bar Association. https://www.ibanet.org/article/9E40E124-20BB-4533-A919-C7B5345F34C4 Committee to Protect Journalists. (2013, Apr. 15). Online journalist in Siberia faces defamation charges. https://cpj.org/2013/04/online-journalist-in-siberia-faces-defamation-char/

Poushter, J. & Givens, G. (2015, Nov. 18). Where the world sees limits to free speech. Pew Research Center. https://www.pewresearch.org/fact-tank/2015/11/18/where-the-world-sees-limits-to-free-speech/

Repucci, S. (2019). Freedom and the media 2019. Freedom House. https://freedomhouse.org/report/freedom-and-media/2019/media-freedom-downward-spiral.

Repucci, S. & Slipowitz, A. (2021). Freedom in the world 2021. Freedom House. https://freedomhouse.org/report/freedom-world/2021/democracy-under-siege Stier, S. (2015). Democracy, autocracy and the news: the impact of regime type on media freedom. Democratization, 22(7), 1273-1295. https://dx.doi.org/10.1080/13510347.2014.964643

Whitten-Woodring, J. (2009). Watchdog or lapdog? Media freedom, regime type, and government respect for human rights. International Studies Quarterly 53, 595-625. https://doi.org/10.1111/j.1468-2478.2009.00548.x

Wike, R. & Simmons, K. (2015, Nov. 18). 2. The boundaries of free speech and a free press. Pew Research Center. https://www.pewresearch.org/global/2015/11/18/2-the-boundaries-of-free-speech-and-a-free-press/