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:
[B]ecause 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.... 5
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.6
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 judgements (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.7
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 (See Cambodia: Guidelines of UN Transitional Authority on Media and Elections). 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.8
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 which, 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...9
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.
See UN Rapporteur on Freedom of Expression: Report 1999 for the full text of the Special Rapporteur's recommendations.
