An important factor in determining the pluralism, independence and vibrancy of the media will be the legal context within which they operate. Journalists themselves often tend towards the view that the less the law has to do with them the better. Certainly the ideal is probably that the legal framework for the media is aimed at creating an enabling environment in which journalism can flourish, rather than regulating its every aspect.
The broad legal framework within which the media operate derives in the first instance from international law. The Universal Declaration of Human Rights (UDHR) is customary international law, which informs the way in which all other law is interpreted. In Article 19, the UDHR provides a fundamental guarantee of the right to freedom of expression, which encompasses the freedom of the media. This is echoed and elaborated in Article 19 of the International Covenant on Civil and Political Rights (ICCPR):
"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."
This is a treaty, which is binding upon any state that ratifies it.
Further, there are regional treaties in Europe, Africa, and the Americas, each of which contains similar guarantees of freedom of expression and media freedom.
At a national level, freedom of expression and of the media will be affected by laws at several different levels:
- The Constitution - the basic or supreme law of the land.
- Statutes passed by the legislature.
- Decrees, regulations, or other statutory instruments, which will usually have lesser force than statutory law.
In principle, of course, all these areas of law will relate to each other in a harmonious fashion. If a country has ratified the ICCPR or its regional human rights treaty, then its provisions will be reflected in the Constitution, which in turn will determine the content of subsidiary law. But life is seldom that simple.
In many legal systems, ratified treaties do not automatically find their way into enforceable national law. Constitutions may have been drafted long ago, before a treaty was ratified. Or the Constitution may reflect progressive developments in freedom of expression law, but other statutes may not have been amended to take account of this. In principle, ratified treaties may take precedence over the Constitution and provide the means for interpreting it. Or they may be deemed to be of equal status to it. Or they may still be part of the domestic law, but regarded as inferior to the Constitution. Likewise, the Constitution will usually be sovereign in relation to statutes, which will be deemed ineffective if they come into conflict with it.
All this, in turn, is contingent upon how far governments respect the rule of law in practice. Even in stable democracies, this is not something that can be taken for granted. A government can easily be irritated by what it sees an inquiring and interfering press and take illegal measures to try to stop its investigations - ranging from unlawfully seizing a journalist's notes to organizing death squads. In this area, as in any other, the vigilance of the judicial system and its readiness to confront the executive branch of government are vital.
