Legal Principles

The role of media in elections is governed by a growing body of law, both at the national and international level. It is important to understand that this jurisprudence is directed overwhelmingly at regulating the behaviour of governments in relation to the media, rather than in regulating the media themselves.

The fundamental principles set out in international law embrace two aspects:

• the right to freedom of expression and freedom of information
• the right to participate in the government of the country, through elections

In their original form these are to be found in Article 19 and Article 21 of the Universal Declaration of Human Rights, adopted by the United Nations in 1948. They are echoed in a number of UN and regional human rights treaties adopted since then. Decisions of the various treaty bodies, such as the UN Human Rights Committee, the European Court of Human Rights, and the Inter-American Commission on Human Rights, have further refined these principles, making them an increasingly rich and applicable source of legal guidance.

A further source of international law on media and elections is to be found in the decisions of other types of international institution, such as the United Nations Special Rapporteur on Freedom of Opinion and Expression, who in 1999 laid out a number of important principles on the role of media in elections and the obligation of governments to guarantee media pluralism.

The approaches of other international bodies - such as UN administrations in internationally supervised elections - also provide a source of "soft law". That is, they have no binding power over UN member states, but they provide an important indication of prevalent international standards.

In addition to the international sources of law, many national laws and decisions of national courts provide a source of comparative law. In many countries, especially those with a common law system, decisions of other national courts may be invoked as a source of guidance and precedent. Again they have no binding power, but, depending on the seniority of the court whose decision is being cited, judges will take serious note of its reasoning and findings.

International Law on Media and Elections

The Universal Declaration of Human Rights, adopted by the UN in 1948, is the definitive statement of principle on human rights. It contains two Articles, 19 and 21, which are fundamental to the obligations of governments regarding the role of media in elections. The first of these, Article 19, guarantees the right to freedom of expression. The second, Article 21, guarantees the right to take part in periodic secret elections.

The UDHR imposes obligations upon all members of the international community. But, as a declaration, it is only what is termed customary international law. With the adoption of the International Covenant on Civil and Political Rights in 1966, these same provisions were amplified and given the force of binding and enforceable law over all those states that ratified. Article 19 of the ICCPR states in part:

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

Article 25 of the ICCPR states in part:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 [distinctions of any kind such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

Taken together, these two provisions have been understood to impose an obligation on governments to ensure the diversity and pluralism of the media during election periods.

The main regional human rights treaties - the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples' Rights - contain a similar combination of guarantees of the right to freedom of expression and information and the right to political participation without discrimination.

The documents adopted by the Conference on Security and Cooperation in Europe go a step further. In the Copenhagen Document of 1990, the participating states of the CSCE committed themselves to ensure:

"That no legal or administrative obstacle stands in the way of unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process."

The CSCE documents are not treaties and therefore do not have the same binding force. But they have been accepted as part of customary international law and therefore impose obligations on participating states.

The decisions of both international and national tribunals give greater detail and substance to these broad principles on media and elections. They can be summarized as follows:

• The media play a vital watchdog role in holding governments accountable and ensuring the effective functioning of a democracy.
• Governments are obliged to ensure the existence of a democracy that ensures media pluralism, especially in elections.
• Freedom of political debate is a fundamental right.
• Political parties and individuals have a right of access to government media during election campaigns.
• Government media are obliged to publish opposition views.
• There exists a right of reply, correction, or retraction in response to wrong statements in the government media.
• There may be limits on the legal liability of the media if they reproduce unlawful statements.
• Political expression may be restricted only for extraordinary reasons.
• There is enhanced protection for criticism of politicians and government.
• There is enhanced protection for political opinions.
• There is a right to an effective remedy for those whose rights have been violated.
• Governments are obliged to protect the safety of media personnel and institutions.

Media and Democracy

It is the mass media that make the exercise of freedom of expression a reality. [1]

The words of the Inter-American Court of Human Rights succinctly state a principle that is now universally acknowledged in international law: the exercise of freedom of expression in a democracy has little meaning if it can only be exercised on an individual level. Freedom of expression is not only about what you are allowed to tell your neighbour - or to hear from him or her. Crucially, it is also to do with the expression of facts and opinions and receiving of information through the media.

The international tribunal that has gone furthest in developing this approach is the European Court of Human Rights. It has concluded that media freedom is vital for keeping citizens informed:

Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society. [2]

The media inform the public about matters of public interest and act as a watchdog over government:

it is ... incumbent on [the press] to impart information and ideas on matters of public interest. Not only does it 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". [3]

According to the European Court, then, there are two aspects to this democratic role of the media: to inform the public and to act as a watchdog of government. This role does not impose particular duties on any particular newspaper or broadcasting station. Rather it imposes a duty on governments to ensure that the media are able to carry out these functions. This principle clearly has practical implications in the election context.

Governments may regulate the technical aspects of broadcasting, according to the European Court. Frequencies should be allocated in a fair and non-discriminatory manner. The media are subject to the law of the land - in matters such as defamation or incitement - but as a general rule governments may not restrict the contents of the media.

[1] Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Inter-American Court of Human Rights, Adv. Opn. OC-5/83 of 13 Nov. 1985, Series A no. 5, reprinted in 7 Human Rights Law Journal (1986), 74 and in 8 EHRR 165.

[2] Castells v. Spain, Judgment of 23 April 1992, Series A no. 236, para. 43.

[3] Thorgeirson v. Iceland, Judgment of 25 June 1992, Series A no. 239, para. 63.

Obligations of Pluralism

The media in an election play a key role, not only as a means of scrutinizing government actions, but also ensuring that the electorate has all the necessary information at its disposal to make an informed and democratic choice. Governments have an important negative obligation not to impede the media in playing these functions. In addition, and at least as importantly, governments have a positive obligation to facilitate media pluralism in order to expose the public to the widest variety of sources of information. Indeed, the obligation contained in Article 19 of the International Covenant on Civil and Political Rights (ICCPR), guaranteeing freedom of expression and freedom of information, applies only to governments and certainly not to individual media organizations.

As the Human Rights Committee stated in its only General Comment on Article 19 of the ICCPR:

"Because of the development of the modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression...." [1]

It was in a similar vein that the Zimbabwean Supreme Court concluded that the monopoly enjoyed by the parastatal Posts and Telecommunications Corporation was unconstitutional on grounds of freedom of expression. The court found that the protection of freedom of expression applies not only to the content of information, but also to the means of transmission and reception of such information. A restriction imposed on the means of transmission or reception necessarily interferes with the right to receive and impart information. Any monopoly that has the effect, whatever its purpose, of hindering the right to receive and impart ideas and information violates the protection of this right. [2]

Jurisprudence from countries as varied as Ghana, Sri Lanka, Belize, India, Trinidad and Tobago and Zambia underlines the twin points that media monopolies are an unacceptable interference with freedom of expression and that publicly-funded media have an obligation to convey viewpoints other than that of the government of the day. A number of these judgments (Zambia, Belize and Trinidad and Tobago) refer to the right of political opponents of the government to have their viewpoint heard in the public media. This right extends to other types of minority as well. The following recommendation is drawn from a UN report on minority rights:

"Members of different groups should enjoy the right to participate, on the basis of their own culture and language, in the cultural life of the community, to produce and enjoy arts and science, to protect their cultural heritage and traditions, to own their own media and other means of communication and to have access on a basis of equality to State-owned or publicly controlled media." [3]

It is important to stress that the role of the media is not just as a vehicle for expression in the narrow sense. The media are important also - indeed, primarily - as a means to enable the public to exercise their right to freedom of information. The media play a role of watchdog over the activities of the government and other powerful institutions. Clearly they cannot play this role if they owe a narrow loyalty to the government or ruling party of the day. The most detailed guidelines produced by the United Nations reflecting best international practice on pluralism and access to the media were those issued by the UN Transitional Authority in Cambodia. These stated:

"An independent and free media should have a diversity of ownership, and it should promote and safeguard democracy, while opening opportunities and avenues for economic, social and cultural development." [4]

In the most definitive statement from a United Nations authority, the UN Special Rapporteur on Freedom of Opinion and Expression, Abid Hussein, concluded in his 1999 annual report:

"There are several fundamental principles that, if promoted and respected, enhance the right to seek, receive and impart information. These principles are: a monopoly or excessive concentration of ownership of media in the hands of a few is to be avoided in the interest of developing a plurality of viewpoints and voices; State-owned media have a responsibility to report on all aspects of national life and to provide access to a diversity of viewpoints; State-owned media must not be used as a communication or propaganda organ for one political party or as an advocate for the Government to the exclusion of all other parties and groups..." [5]

The Special Rapporteur then went on to list a series of obligations on the State to ensure "that the media are given the widest possible latitude" in order to achieve "the most fully informed electorate possible":

• There should not be bias or discrimination in media coverage
• Censorship of election programmes should not be allowed
• Media should be exempt from legal liability for provocative statements and a right of reply should be provided
• There should be a clear distinction between news coverage of functions of government office and functions as a party candidate
• Air time for direct access programmes should be granted on a fair and non-discriminatory basis
• Programmes provide an opportunity for candidates to debate each other and for journalists to question them
• Media should engage in voter education
• Programmes should target traditionally disadvantaged groups, which may include women and ethnic and religious minorities.

[1] Adopted by the Human Rights Committee at its 461st meeting on 27 July 1983, UN Doc. A/38/40, 109.

[2] Retrofit (Pty) Ltd vs Posts and Telecommunications Corporation, Supreme Court, 1995(9) BCLR 1262 (2).

[3] Positive ways and means of facilitating the peaceful and constructive solution of problems involving minorities (Report by Special Rapporteur Asbjorn Eide), Addendum 4, UN Doc. E/CN.4/Sub.2/1993/34/Add.4, part II, paras 11 and 12.

[4] UN Transitional Authority in Cambodia (UNTAC), Media Guidelines for Cambodia (1992).

[5] Report of the Special Rapporteur on the protection and promotion of the right to freedom of opinion and expression, Mr. Abid Hussain, UN Doc. E/CN.4/1999/64 29 January 1999.

Freedom of Political Debate

Freedom of political debate has been recognized by international courts, other international bodies, and national tribunals as a fundamental right. The European Court of Human Rights noted in 1978: "freedom of political debate is at the very core of the concept of a democratic society". [1]

Part of the importance of political debate is as a way of giving the electorate information that allows it to exercise its political choice. The UN Technical Team on the Malawi referendum of 1993, which chose between a single and multi-party system, stated: "If voters are to make an informed choice at the polling station, then an active exercise of the freedom [of expression] is essential." [2] The Enugu High Court in Nigeria made a similar observation:

Freedom of speech is, no doubt, the very foundation of every democratic society, for without free discussion, particularly on political issues, no public education or enlightenment, so essential for the proper functioning and execution of the processes of responsible government, is possible. [3]

And the Israeli Supreme Court stated:

Real democracy and freedom of speech are one. Freedom of speech enables each individual to crystallize his or her autonomous opinion in the decision-making process vital in a democratic state. The essence of democratic elections is premised on being able to reach informed opinions, evaluating them and exposing them to open debate ... [4]

[1] Lingens v. Austria, Judgment of 8 July 1986, Series A no. 103, at para. 42.

[2] Report of the UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of a One Party/Multiparty System in Malawi (15-21 Nov. 1992), para. 26.

[3] The State v. The Ivory Trumpet Publishing Co. [1984] 5 NCLR 736, High Court, Enugu, 31 Jan 1983.

[4] Zeveli v. Central Committee for the Elections to the 13th Knesset, and Association for Civil Rights in Israel v. the Israeli Broadcasting Authority, HC 869/92 and 931/92; 46(2) Piskei Din, 692.

Right of Access to Government Media

There is a growing weight of decisions by national tribunals on the right of opposition parties to access to the government media. There is a clear trend towards recognizing that governments have an obligation to ensure such access. This was the approach taken by the UN Special Rapporteur on Freedom of Opinion and Expression in his 1999 report.

In 2000, for example, the Zimbabwe Supreme Court made two rulings addressing this very issue. In January, the court instructed the Zimbabwe Broadcasting Corporation (ZBC) to broadcast advertisements and campaign material prepared by the "No" campaign in the country's referendum on a proposed new constitution. The "Yes" campaign, favoured by the government, had had its material broadcast at considerable length. [1]

On 13 June, a few days before parliamentary elections, the Supreme Court, ruling on an application from the opposition Movement for Democratic Change, ordered the ZBC to stop its biased political broadcasting and to fulfil its functions under the Broadcasting Act to carry on TV and radio broadcast services impartially, without discrimination on the basis of political opinion and without hindering persons in their right to impart and receive ideas and information. [2]

A few years earlier, the High Court in Zimbabwe's northern neighbour, Zambia, had been called upon to rule on a similar issue. The point under dispute was a directive issued by President Kenneth Kaunda in the weeks before the country's first multi-party elections in 1991. This instructed the three government-controlled newspapers not to report statements by leaders of the main opposition party or to accept its advertisements. The court held that the directive violated the constitutional guarantee of freedom of expression:

"Since the petitioners were not allowed to publish their views on political matters through the government newspapers, and by necessary implication even through the radio and TV, they were denied the enjoyment of their freedom of expression ..." [3]

The court then made a more general comment on the proper role of publicly-owned media:

"In the case of newspapers they are supposed to be run on the basis of journalistic principles and ethics free from any outside interference. These principles dictate the coverage of all newsworthy events regardless of the source of such news. Anything less than this, and it is very easy for the general public to assess whether or not a given newspaper is working according to sound journalistic principles and ethics, is not acceptable from a publicly owned medium - print or other." (ibid)

The High Court of Trinidad and Tobago had earlier made a similar finding in relation to television. The state-owned television station had refused to broadcast a pre-recorded speech by an opposition member of parliament. The court ruled that this action violated the right to freedom of expression:

"With television being the most powerful medium of communication in the modern world, it is in my view idle to postulate that freedom to express political views means what the constitution intends it to mean without the correlative adjunct to express such views on television. The days of soap-box oratory are over, as are the days of political pamphleteering ..." [4]

International observer missions and supervisory and advisory groups have taken a similar approach in recent years. The UN observer mission at the 1989 Nicaraguan elections, for example, stated that it was necessary for "all political parties [to] have equitable access to State television and radio in terms of both the timing and the length of broadcasts." [5] The UN Technical Team for the 1993 Malawi referendum made a similar recommendation:

In the case of government-owned media, it is customary that equal access, both in terms of timing and length of broadcast, should be given to the competing sides to put forward their arguments." [6]

(Note that in this case the recommendation was for "equal" rather than "equitable" access since this was a referendum where the choice was between two propositions rather than a number of political parties.)

Likewise, in the UN-supervised elections in Cambodia in 1993, the UN Transitional Authority in Cambodia (UNTAC) was concerned to ensure fair access to the media, as set out in its election guidelines:

In the exercise of its responsibilities under the Agreement, UNTAC will ensure "fair access to the media, including press, television and radio, for all parties contesting the election". [7]

[1] Media Monitoring Project Zimbabwe, A Question of Balance: The Zimbabwean media and the constitutional referendum, Harare, 2000.

[2] Media Monitoring Project Zimbabwe, Election 2000: The Media War, Harare, 2000, p.11.

[3] Arthur Wina & Others v. the Attorney-General (1990) HP/1878 (High Court: Lusaka).

[4] Rambachan v. Trinidad and Tobago Television Co. Ltd and Attorney-General of Trinidad and Tobago, decision of 17 July 1985 (unreported).

[5] Establishment and Terms of Reference of the UN Observer Mission to Verify the Electoral Process in Nicaragua (ONUVEN), The Situation in Central America, UN GAOR, 44th Sess., "Threats to International Peace and Security and Peace Initiatives," UN Doc. A/44/375 (1989), Annexe 1, at 3.

[6] Report of the UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of a One Party/Multiparty System in Malawi (15-21 Nov. 1992), para. 27.

[7] UN Transitional Authority in Cambodia (UNTAC), Media Guidelines for Cambodia (1992), pream. para. 4.

Publishing Opposition Views

The obligation on publicly-owned or government-controlled media to publish or broadcast the views of the opposition derives from the prohibition of discrimination in the enjoyment of rights. This is strongly stated in the International Covenant on Civil and Political Rights, as well as in other human rights treaties. It means that if the ruling party has an opportunity to exercise its right to freedom of expression through the government media, then the opposition must be given the same opportunity.

The European Commission of Human Rights rejected an application by an association that had been refused air time during an election by the British Broadcasting Corporation (BBC). The Commission stated that although there was not, in its view, a general right of access to the broadcast media, political parties should be given such access on an equitable basis:

It is evident that the freedom to "impart information and ideas" included in the right to freedom of expression under Article 10 of the Convention, cannot be taken to include a general and unfettered right for any private citizen or organization to have access to broadcasting time on radio or television in order to forward its opinion. On the other hand, the Commission considers that the denial of broadcasting time to one or more specific groups or persons may, in particular circumstances, raise an issue under Article 10 alone or in conjunction with Article 14 of the Convention [prohibiting discrimination]. Such an issue would, in principle, arise for instance if one political party was excluded from broadcasting facilities at election time while other parties were given broadcasting time. [1]

This is a common sense view that is reflected in remarks by the United Nations Special Rapporteur on Freedom of Expression, as well as in policy or practice in many countries. It guarantees the continued editorial independence of the media, at the same time as providing a minimum standard of access by political parties.

[1] X and the Association of Z v. the United Kingdom, European Commission on Human Rights, Admissibility Decision of 12 July 1971, App. No. 4515/70, 38 Collected Decisions 86 (1971).

Right of Reply to Media Reports during Elections

The idea of creating a legally enforceable right of reply or correction has never found much favour with freedom of expression campaigners, who fear that it would stifle free and robust expression - clearly something that is particularly needed in the context of elections. However, both international advisory bodies and some national courts have favoured such a mechanism, especially when the matter being replied to is in the government-controlled media, to which the opposition may not have ready access.

This is the guideline, for example, developed by the UN Transitional Authority in Cambodia.

Media outlets should give parties, groups or individuals whose views have been misrepresented or maligned by a publication or broadcast the "right of response" in the same media outlet. [1]

The Indian Supreme Court recognized a right of reply that was specific to government publications, stating that "fairness demanded that both viewpoints were placed before its readers, however limited be their number, to enable them to draw their own conclusions." [2]

The High Court and Court of Appeal in Belize found in favour of a right of reply in a case with a particular relevance to elections. The Belize Broadcasting Authority (BBA) had refused permission to a senior opposition politician and the director of a television station to broadcast a series of programmes replying to government statements on the economy. The High Court ruled that the BBA had acted arbitrarily, stating:

"Today television is the most powerful medium for communications, ideas and disseminating information. The enjoyment of freedom of expression therefore includes freedom to use such a medium." [3]

The Court of Appeal supported the High Court's ruling and held that the BBA's refusal to broadcast the programmes violated the applicants' constitutional rights to both freedom of expression and protection from discrimination. Political parties must be given the opportunity to reply on television to statements made by the government that "provide information or explanation of events of prime national or international importance or ... seek the co-operation of the public in connection with such events." Only where there was a "general consensus of opinion" would the opposition not have a right of reply. [4]

[1] UN Transitional Authority in Cambodia (UNTAC), Media Guidelines for Cambodia (1992).

[2] Manubhai Shah v. Life Insurance Corp. of India [1992] 3 SCC 637.

[3] Belize Broadcasting Authority v. Courtenay and Hoare, Court of Appeal, 20 June 1986; (1988) LRC (Const.) 276; 13 Common L Bull (1987), 1238.

[4] Ibid., citing Halsbury's Laws of England (4th edn, Vol. 8, para. 1134).

Limits to Liability of Media During Elections

Both journalists and politicians are concerned – rightly – with the issue of defamation. Specifically, how far are the media legally liable if they report statements by politicians that are subsequently found to be defamatory?

In his 1999 report, the UN Special Rapporteur on Freedom of Opinion and Expression came down firmly in favour of exempting the media from liability for publishing unlawful statements made by politicians in the context of an election. The type of statements envisaged might include those that were defamatory or incited to hatred. This does not mean that there would be no liability for such statements - the person who made them would still be liable - but that the media would be free to reproduce them without, for example, having to review every party election broadcast or advertisement before transmission.

"The Special Rapporteur was offering a clear guideline on a matter that has been hitherto unclear and controversial. Thus, for example, the United Nations Transitional Authorities in Cambodia in its guidelines took precisely the opposite view, assuming that media would be legally responsible for statements that "incite discrimination, hostility or violence by means of national, religious, racial or ethnic hatred"." [1]

The Special Rapporteur was reflecting a growing trend in national courts and legislatures. The Danish Parliament passed a law exempting the media from liability for publishing statements inciting racial or national hatred, providing that they themselves did not intend to promote hatred. This followed the conviction of a journalist who had been convicted and fined for broadcasting a television interview with members of a racist gang. He applied to the European Commission of Human Rights, which ruled his application admissible. [2]

The Spanish Constitutional Court similarly found that a newspaper could not be held liable for publishing a statement by a terrorist organization:

"Both the right of the journalist to inform and the rights of his readers to receive full and accurate information constitute, in the last resort, an objective institutional guarantee, which effectively prevents the imputation of any criminal will on the part of those who only transmit information." [3]

This reasoning is important, because it stresses that the argument against applying liability to the media in such cases is primarily to do with protecting the public right to receive information.

[1] UN Transitional Authority in Cambodia (UNTAC), Media Guidelines for Cambodia (1992).

[2] Jersild v. Denmark, App. No. 15890/89, decision on admissibility issued 8 Sept. 1992.

[3] Egin case, STC 159/86, Boletin de Jurisprudencia Constitucional 68, at 1447 para. 8.

Restrictions on Political Speech

Freedom of expression is not an absolute right and it may be limited in certain circumstances. But such limitations must conform to clearly defined standards. Almost invariably it will not be legitimate to restrict political speech before it is spoken. So, while a person who is defamed may have a legal remedy, it is not acceptable to apply prior censorship to politicians’ words to ensure that they do not contain defamatory content.

Article 19 of the International Covenant on Civil and Political Rights provides in paragraph 3 a number of grounds on which the right may be restricted.

"The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights and reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals."

Jurisprudence has established that freedom of expression under international law may only be limited by the application of a three-part test in order to establish that the limitation is:

• Established by law - that is, that it must pre-exist in national or binding international law;
• Serving a legitimate purpose - that is, one of the purposes contained in Article 19(3) of the ICCPR;
• And necessary in a democratic society. This means, among other things, that the restriction should be proportionate to its purpose and that it should not detract from the essence of the right itself.

Article 20 of the ICCPR may also be relevant on occasions. This prohibits propaganda for war and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

The UN Technical Team on the Malawi Referendum applied these principles to national law governing a poll campaign. It stated that an restriction on freedom of expression:

"should not be so vague or broadly defined as to leave an overly wide margin of discretion to the authorities responsible for enforcing the law, since uncertainty over legal boundaries has a dampening effect on the exercise of this right [to freedom of expression] and may encourage discrimination in ... [the restrictions'] application." [1]

[1] Report of the UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of a One Party/Multiparty System in Malawi (15-21 Nov. 1992), para. 29.

Criticism of Politicians and Government

International tribunals - and increasingly national ones as well - are clear that politicians and governments may be subject to greater criticism and insult than ordinary private individuals and that consequently the law will offer them less protection. This is, of course, the opposite of the situation that has so often prevailed, with government officials often invoking charges such as criminal defamation against critics.

International law also distinguishes between factual allegations and opinions. Political opinions may only be restricted in the most extreme circumstances. They cannot be restricted on the grounds that they are "untrue" since, as the European Court of Human Rights observed, to require someone accused of defamation to prove the truth of an opinion "infringes freedom of opinion itself". [1]

The European Court of Human Rights has ruled unanimously that because "freedom of political debate is at the very core of the concept of a democratic society ... the limits of acceptable criticism are accordingly wider as regards a politician as such than as regards private individuals." In addition, "the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician." Penalties for defamation in such cases would only apply where the accusations are "devoid of foundation or formulated in bad faith." The court also stated:

While freedom of expression is important for everybody, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition Member of Parliament... call for the closest scrutiny on the part of the Court. [2]

The civil law of defamation can legitimately be used to protect reputations against reckless and malicious allegations. But increasingly, national courts have ruled that the scope of defamation law must be such that it does not prevent the media from carrying out their proper function - or stifle vigorous political debate. The historic judgment of the United States Supreme Court in New York Times v Sullivan (1964) established the principle that there should be greater latitude in criticizing a public official, even to the extent of mistaken or inaccurate statements, provided that these were not made maliciously. The court pointed out that public figures had far easier access to channels of communication to counteract false statements. [3] In recent years, this approach has been adopted, in different ways, in a wide variety of other jurisdictions, including the United Kingdom, Australia, Pakistan, India, and Zambia. [4]

[1] Lingens v. Austria, Judgment of 8 July 1986, Series A no. 103.

[2] Castells v. Spain, Judgment of 23 April 1992, Series A no. 236.

[3] New York Times Co. v. Sullivan, 376 US 254 (1964).

[4] Joanna Stevens, "Sullivan's Travels", Southern African Media Law Briefing, Vol.2 No. 1, April 1997.

Right to an Effective Remedy

International law provides that any person who believes that their rights have been violated shall be entitled to an effective remedy in a national tribunal. In relation to media and elections, this means that there is an expectation that the courts will be able to deal with any unjustified restrictions on media coverage, denial of access to the media, denial of the right of reply, defamatory or inflammatory material, or any other issue where media, parties and candidates, or the electorate feel that their rights have been infringed.

Inherent in the notion of a remedy is the idea that it will actually offer the complainant a timely and practical solution. This is especially important in the context of an election. If, for example, defamatory or inaccurate information is broadcast, the remedy required will not be a correction or even monetary compensation at some distant future date. The important thing is that it should be corrected while it is still fresh in the electorate’s collective mind (and while it is still relevant to the outcome of the poll).

So, while the normal courts will still be the ultimate arbiters of whether rights have been infringed, many countries also have administrative procedures that will be able to deal with complaints more rapidly. These may be regular complaints mechanisms operated by a broadcasting regulator or a media council. Or they may be special procedures that are only in place during election periods.

When the body that decides the complaint is administrative (rather than judicial) in nature, then it should be separate from the body complained against. This would apply, for example, in the case of complaints against a broadcaster.

The UN Technical Team for the Malawi Referendum recommended that "a recourse mechanism should be present providing for independent review of cases where restrictions on this right [to freedom of expression] have been applied." [1]

[1] Report of the UN Technical Team on the Conduct of a Free and Fair Referendum on the Issue of a One Party/Multiparty System in Malawi (15-21 Nov. 1992), para. 29.

Protecting the Safety of the Media

Journalism is a dangerous occupation. Statistics collected by media freedom organizations show that each year dozens of media professionals are killed or injured in the course of their work. Elections are not the most dangerous part of their work - but a tense and sometimes violent campaign will carry its dangers for those trying to report honestly and accurately.

The responsibility for protecting the physical security of everyone within its territory rests with the government, which has a particular obligation in relation to the media. It was in recognition of this that the 1993 World Conference on Human Rights resolved:

The World Conference encourages the increased involvement of the media, for whom freedom and protection should be guaranteed within the framework of national law. [1]

There are a few basic steps that governments can take to ensure this protection:

• Repeal all laws restricting media freedom.
• Create a specific offence relating to violence or threats against the media.
• Ensure that all reports of violence or threats against the media are investigated promptly and those responsible brought to justice.

In addition, an electoral management body can promote a code of conduct that stresses the importance of both political parties and security forces allowing journalists to go about their work unimpeded.

[1] World Conference on Human Rights, Vienna Declaration, para. 26.