It is
the mass media that make the exercise of freedom of expression and information
a reality.[i]
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.[ii]
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".[iii]
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.
[i] “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 Human Rights
Law Journal 7 (1986):74 and in EHRR 8: 165.
[ii] Castells v.
Spain, Judgment of 23 April 1992, Series A no. 236, para. 43.
[iii] Thorgeirson v.
Iceland, Judgment of 25 June 1992, Series A no. 239, para. 63.
