Uzstāšanās konferencē "Elektroniskie sabiedrības saziņas līdzekļi un sabiedrības integrācija" 2002. gada 22. novembrī

I will be examining in the next few minutes the issue of mass media by focusing on minorities. However, let me make it very clear that I will be doing this from the position of international law, meaning human rights treaties under the United Nations system and the Council of Europe.

Most of what I will be describing as “minority rights” in the area of the media are largely based on the individual human right of freedom of expression as applied to the specific situation of minorities, as well as to the application of the right of non-discrimination in the area of mass media.

Because I am talking about legal obligations, this means that I will be concentrating on treaties, treaties of the Council of Europe and of the United Nations, though I should mention that there are other instruments which, even though not legally binding, have a significant political or persuasive role to play because they help to explain and understand what are the obligations of states in relation to mass media and minorities. In this category, I could mention many, but will limit myself to the Oslo Recommendations regarding the linguistic rights of national minorities which was prepared for the OSCE, and the UN Declaration on the Rights of National or Linguistic, Religious or Ethnic Minorities.

The rights that affect the mass media need to be considered from two different categories. There is first the situation of private media, and then there is the situation of public or state media, such as national state radio or television. It is important, even necessary to make this distinction because when you are dealing with private media it is freedom of expression which is often the central right which is involved.

But, when you are dealing with state mass media, the main right involved from a legal point of view is usually non-discrimination, not freedom of expression.

I will first describe what could be said to be the rights of minorities in the area of private mass media, then look at those in relation to public media, focusing particularly on the issue of language.

Then, I would like to make some comments as to why respecting these rights are an essential requirement in democratic, liberal societies.

First, private media. Here, the principle based on international and European treaties is freedom: Individuals are free to publish books or newspapers privately in a minority language. If public authorities attempted to prohibit such activities because they are done in an unrecognised or banned language, this would a violation of freedom of expression guaranteed under international law and in the European Convention on Human Rights. It is also protected under Article 27 of the International Covenant on Civil and Political Rights and similar provisions in the case of minorities generally. Members of a minority cannot be prevented from publishing privately in their own language.[1]

This also applies for private broadcasting, whether we are talking about private radio or television. There is a pretty wide-ranging agreement that this is guaranteed in international law and Council of Europe treaties under freedom of expression and of the press.

If a government or public authorities prevented the use of a minority language in private broadcasting this would, in my opinion, be a violation of freedom of expression. There haven’t been many cases on this specific issue, but there have been enough to give a rather clear support for such a conclusion. The United Nations Human Rights Committee has for example in a number of comments to reports from States made comments such as this one:

7. The Committee expresses its concern over the inadequate protection of the rights of ethnic, religious and linguistic minorities in the Dominican Republic. In this regard, the Committee notes that the prohibition of broadcasting in a language other than Spanish is not in conformity with article 19 [freedom of expression] of the Covenant.[2]

Similarly, though not involving the media as such, the United Nations Human Rights Committee indicated in the 1993 Ballantyne, Davidson and McIntyre v. Canada, that private use of language is protected under freedom of expression, and that public authorities cannot ban the use of a particular language in private correspondence or communication, though the Committee did suggest that it may be permissible for public authorities to require that an official language be used in addition to, but not excluding or obstructing, the individual’s language of preference in these private activities.

Not excluding or obstructing. It is important to repeat and emphasise those two words. In Ballantyne the Committee accepted that it is a legitimate objective in Québec given the historical legacy in that province, to take measures to protect and strengthen the French language. It was even acceptable to demand that individuals use that province’s only official language in private activities such as commercial signs, but only, only as long as such a requirement did not obstruct or exclude an individual’s freedom of expression to use his or her language of choice, whether it is English, Chinese or Arabic. As long as you do not exclude or obstruct an individual’s language choice in private expression matters, it would seem that there is no violation of freedom of expression, as understood under the International Covenant on Civil and Political Rights. This would also be the case under freedom of expression in the European Convention on Human Rights.

I will go in some further comments a little bit later on private mass media, but it might help understand better by explaining briefly what are the rights in relation to state media. As I said earlier, from a legal point of view it is useful to make this distinction because the rights involved when talking about state mass media are absolutely not based on freedom of expression, but more generally on the application of the right to non-discrimination and similar provisions.

There are a number of instruments for example which are quite clear on this matter: minorities have the right to have their language used by public media when public authorities are involved in this area to the degree that is justified and reasonable in light of the number of speakers of a minority language in application of what I call the proportionality approach. This involves all types of public media, whether public authorities are involved in public radio or television broadcasting, printed or electronic media.

It is mentioned as a specific right of minorities in documents such as the Framework Convention on the Protection of National Minorities and the Oslo Recommendations on the Linguistic Rights of National Minorities and a number of other documents: if public authorities control, operate or finance any media, it must do so in a non-discriminatory fashion and, at the very least, reflect in the time and resources allocated to its public media activities the relative demographic importance of its linguistic minorities.[3]

It is also, arguably, an example of the application of non-discrimination.

These rights should be, no, from a legal point of view they must be respected. They must be respected because it is clear that in modern liberal democracies the media is increasingly the most important source of information and ideas for most people in Europe.

We hear of political developments and social events, listen to music and even learn about our culture through the media. This is true for both majorities and minorities, by the way, though I have focused on minorities.

Access to the media, in the broadest sense of that phrase, is significant for most individuals to preserve and promote their identity, to maintain contacts with other members of society, and to participate in social, economic and public life. Restrict or obstruct the media, and you are limiting or obstructing the ability of people to freely participate and contribute to society.

The right to freedom of opinion, expression and information is a fundamental human right found in all the major international human rights treaties as well as in many other conventions, agreements, resolutions and inter-governmental recommendations.

It is sometimes forgotten exactly what this means. Let me just quote to you the words that all 43 member States of the Council of Europe have agreed and accepted as part of the law with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)[4]:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

This is also emphasised in the 1990 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE in which the participating States which reaffirmed their commitment to freedom of expression in the following terms:

(9.1) – everyone will have the right to freedom of expression including the right to communication. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of this right may be subject only to such restrictions as are prescribed by law and are consistent with international standards.[5]

Why is this so important: it is important, in the words of the European Court of Human Rights, because:

[F]reedom 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 … but also to those which offend, shock or disturb the State or any other sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”.[6]

That must never be forgotten. Freedom of expression is a cornerstone upon which the very existence of a democratic society rests.[7]

Inherent in all of this is the need to promote pluralism within the media environment and to ensure equal access of all to the media. As the European Court stated: “[Imparting] information and ideas of general interest … cannot be successfully accomplished unless it is grounded in the principle of pluralism.”[8]

This does not mean that states cannot impose any demands which might affect freedom of expression. There are in international and European human rights law permissible restrictions on freedom of expression. Let me give you the example which exists under Article 10, paragraph 2 of the ECHR

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

It should be noted that restrictions must meet a strict three-part test.[9] First, the interference must be provided for by law. The law must be accessible and “formulated with sufficient precision to enable the citizen to regulate his conduct.”[10] Second, the interference must pursue one of the legitimate aims listed in Article 10(2) of the ECHR; these lists are exclusive. No other reason to limit freedom of expression are valid in European law, point final.

Third, the interference must be necessary to secure that aim, in the sense that it serves a pressing need, that the reasons given to justify it are relevant and sufficient, and that the interference is proportionate to the legitimate aim pursued.[11] International decisions, by the way, make it clear that this is a very strict test, presenting a high standard which any interference must overcome. This is apparent from the following quotation, cited repeatedly by the European Court:

Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.[12]

Only these kinds of restrictions are permitted in European and international law, and they are I would say only possible if they satisfy all of these strict requirements. As the European Court has said on many, many occasions, freedom of expression, freedom of the media is too important in an open, democratic society to be messed around lightly.

If you have restrictions which make it very difficult for private media to operate in their language of choice whether it is a minority language or another language, this would be a violation of freedom of expression, possibly in combination with the right of non-discrimination as contained in Article 14 of the European Convention on Human Rights, unless it is required by law, necessary in a democratic society for reasons of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. No other restriction to freedom of expression are permitted, and that is the law.

I would like to end by pointing out that it is possible to protect and promote a common unifying language without being in violation of freedom of expression from a legal point of view. It is possible to have a common language without having an exclusive language. This is an effective, positive approach which is used in a number of countries, where public authorities such as in Catalan in Spain have adopted a number of programmes in order to promote strongly private broadcasting and publishing in the local official languages, and not by restricting the private broadcasters who wish to use Spanish. A definite preference yes, in helping the private Catalan broadcasters, yes, but no restriction on private Spanish boradcasters which might constitute violations of freedom of expression.

It is in other words, possible to pursue the goal on having a common, official language, while at the same time not obstructing the exercice of one of the pillars of a vibrant, healthy, democracy: freedom, freedom to speak, to hear, to read and to be have the ability to be full and equal partners in society.

That is the sign of an open society which, as the European Court of Human Rights has said, is one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.
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[1] Article 9 of the Framework Convention for the Protection of National Minorities and Article 11(2) of the European Charter for Regional or Minority Languages. Paragraph 12(ii) of Recommendation 1134 (1990) on the Rights of Minorities, Article 7(2) of Recommendation 1201 (1993) on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights and Recommendation 8 hof the Oslo Recommendations regarding the Linguistic Rights of National Minorities are also useful in this regard, though of a non-binding nature.

[2] Comments on Dominican Republic, U.N. Doc. CCPR/C/79/Add.18 (1993).

[3] Articles 9 and 10 of the Framework Convention for the Protection of National Minorities; and Article 11(1) of the European Charter for Regional or Minority Languages; and in general Article 1 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities. Recommendation 9 of the Oslo Recommendations regarding the Linguistic Rights of National Minorities supports the same conclusion, though it is not a treaty nor official OSCE document.

[4] E.T.S. No. 5, in force 3 September 1953.

[5] 29 June 1992. See Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE, 15 October 1991, Section 26.

[6] Handyside v. United Kingdom, Judgment of 7 December 1976, Application No. 5493/72, 1 EHRR 737, para. 49.

[7] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 November 1985, Series A, No. 5, para. 70.

[8] Informationsverein Lentia and Others v. Austria, Judgment of 24 November 1993, Application Nos. 13914/88, 15041/89, 15717/89, 15779/89 and 17202/90, 17 EHRR 93, para. 38.

[9] This test has been affirmed by both the UN Human Rights Committee – see, Mukong v. Cameroon, 21 July 1994, Communication No. 458/1991, para. 9.7 – and the European Court – see The Sunday Times v. United Kingdom, Judgment of 26 April 1979, Application No. 6538/74, 2 EHRR 245, para. 45.

[10] The Sunday Times, op cit., para. 49.

[11] See Lingens v. Austria, Judgment of 8 July 1986, Application No. 9815/82, 8 EHRR 407, paras. 39-40 (European Court).

[12] See, for example, Thorgeirson, op cit., para. 63.