Freedom of Expression
6. CHAPTER V - INDIRECT VIOLATIONS OF THE FREEDOM OF EXPRESSION
THE IMPACT OF THE CONCENTRATION OF MEDIA OWNERSHIP[1]
A. Introduction
1. Continuing its study of indirect violations of the freedom of expression, the Office of the Special Rapporteur for Freedom of Expression has prepared the following report on the concentration of media ownership and its impact on the free circulation of ideas. This study aims to describe initial approaches to the issue, considering that it merits special attention, and proposes joint efforts for the Member States to develop measures on the concentration of media ownership.
2. In recent years, the Office of the Special Rapporteur has been receiving a steady flow of reports of certain monopolistic and oligopolistic practices related to media ownership in some of the Member States.[2] In effect, in its previous report covering 2003, the Office of the Special Rapporteur for Freedom of Expression insisted that concentration of media ownership is a practice that runs counter to democracy and pluralism, as it impedes the diverse expression of the various sectors of society.[3]
3. This report consists of two parts. In the first part we review and spell out some basic conceptual issues concerning concentration of media ownership and freedom of expression; this will enable us, in the second part, to evaluate the extent to which this human right is negatively impacted by such concentration, and consequently to provide insight for seeking solutions. The second part analyzes the main problems that have arisen in the European and inter-American systems for the protection of human rights in relation to the concentration of media ownership, to then draw some conclusions taking stock of the main challenges, all with a view to making suggestions and recommendations to help address them.
4. Along these lines, this report seeks to further a current of opinion favorable to the full observance of the freedom of expression, reaffirming that its exercise is not only an expression of human dignity, but also one of the essential pillars of the democracy. The analysis set forth herein may be supplemented in the future by specific studies on certain situations.
B. Part I: Basic issues
1. Direct and indirect violations of the freedom of expression
5. In its previous report,[4] the Office of the Special Rapporteur on Freedom of Expression noted that in terms of violations of the freedom of expression, one often finds conduct which over time has been considered “typical” of violations of this right. All of these are measures which have been designed to impose direct restrictions on the exercise of the freedom of expression.
6. As the Inter-American Court of Human Rights has noted, these occur
when governmental power is used for the express purpose of impeding the free circulation of information, ideas, opinions or news. Examples of this type of violation are prior censorship, the seizing or barring of publications and, generally, any procedure that subjects the expression or dissemination of information to governmental control.[5]
7. The assassination of journalists is also included in this category. Most of the instruments that refer to the freedom of expression, under both domestic and international law, have been framed in these terms.
8. Over time, however, indirect forms of restricting the freedom of expression have appeared. In this respect, the American Convention on Human Rights notes at Article 13(3):
The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
9. These measures, unlike the previous ones, have not been designed strictly speaking to restrict the freedom of expression. In effect, per se they do not constitute a violation of this right. Nonetheless, in practice they have an adverse impact on the free circulation of ideas which is rarely investigated, and, accordingly, harder to detect. The concentration of media ownership is one such indirect restriction on or threat to the freedom of expression.
2. The freedom of expression as a foundation for plurality in information
10. For several years it has been said that the concentration of media ownership is one of the greatest threats to pluralism and to the diversity of information. The freedom of expression is closely related to the problem of concentration of ownership, though this is sometimes hard to perceive because of the subtle nature of the connection, which has to do with what we know as “plurality” or “diversity” of information.
11. In this respect, the Inter-American Court of Human Rights has stated:
Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.[6]
12. Similarly, the Declaration of Principles on Freedom of Expression drawn up by the Office of the Special Rapporteur for Freedom of Expression of the OAS in 2000 notes in the first part of Principle 1:
Freedom of expression in all its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society.[7]
13. Along the same lines, in 2001, the UN Special Rapporteur on Freedom of Opinion and Expression, the Representative on Freedom of the Media of the Organization for Security and Cooperation in Europe (OSCE), and the Special Rapporteur on Freedom of Expression of the OAS signed a joint declaration in which they stated:
Promoting diversity should be a primary goal of broadcast regulation; diversity implies gender equity within broadcasting, as well as equal opportunity for all sections of society to access the airwaves;
Broadcast regulators and governing bodies should be so constituted as to protect them against political and commercial interference.[8]
14. Plurality is the essential characteristic of the freedom of expression in democracy. The freedom of expression is a condition for transparency, the effective existence of alternatives, accountability, and the rational participation of citizens in political systems. In this regard, the free circulation of ideas is guaranteed “when the citizen finds himself or herself in the position of being able to form an opinion on the decisive issues and when he or she knows enough about the conduct of the authorities to be able to approve or reject their performance in office. The freedoms of expression and information guarantee the existence of free and plural public opinion, this being an essential condition for the existence of a plural and democratic society, without which freedom of conscience and the dignity of the person are unthinkable.”[9]
15. In effect, the media enable individuals to be able to form their own political opinion and then to compare it with the opinions of others. Only an informed individual can make an assessment and freely embrace one or another position in the political spectrum. The need for more information, together with the freedom to be able to express and exchange points of view, are of vital importance in the decision-making processes in which the various members of society take part. The exercise of the freedom of expression by the citizens of a state depends directly on the media providing information freely and independently.
16. It is important that the mass media “can truly be an instrument for freedom of expression. It is the mass media that makes the exercise of freedom of expression a reality and therefore the media must adapt itself to the requirements of this right.”[10]
17. Following this trend, in recent years it has been understood that one of the fundamental requirements of the freedom of expression is the need for a broad plurality of information and opinions available to the public. And this is why monopolistic or oligopolistic control of the media may have a serious detrimental impact on the requirement of plurality in information. When the sources of information are seriously reduced in number, as in the case of oligopolies, or when there is a single source, as in the case of monopolies, the possibility that the information being disseminated will have the benefits of being compared with information from other sectors is limited, imposing a de facto limitation on the right of all society to information.[11] The existence of monopolies or oligopolies, public or private, thus constitutes a serious obstacle to the dissemination of one’s own thinking, and to receiving different opinions.
18. In effect, if these media are controlled by a limited number of individuals or social sectors, or just one, the result is a lack of plurality that hampers the functioning of democracy. Democracy requires a confrontation of ideas, debate, and discussion. When this debate is non-existent or is weakened because of a limited number of sources of information, the “the main pillar of democratic government” is being attacked.[12]
19. As the Inter-American Court of Human Rights has noted,
... freedom of expression can also be affected without the direct intervention of the State. This might be the case, for example, when due to the existence of monopolies or oligopolies in the ownership of communications media, there are established in practice "means tending to impede the communication and circulation of ideas and opinions."[13]
20. Yet the freedom of expression also implies that the citizens are able to accede to diverse sources of information, including opinions and ideas, as well as a variety of forms and outlets for artistic and cultural expression. As has been noted, “culture in a broad sense influences society in subtle ways, building the basis on which we form our opinions.”[14] Uniformity in the mass media strengthens conformity and discourages evaluation of other perspectives and opinions.
21. As will be examined below, this is how the problem is understood in the European system for the protection of human rights. In the European regional framework, the domestic and international instruments initially used to report only direct violations have been reinterpreted with singular efficacy in order to combat these new forms of restrictions on the freedom of expression.
3. Concentration of media ownership
a. Introduction
22. It is common to find that diverse competitors in a market engage in a variety of operations–such as mergers and acquisitions–to improve their market position and to reach a larger number of consumers. In many cases, the number of competitors in a market is quite limited. This may occur naturally; in other cases, however, it is the result of operations that seek to concentrate control of the market in a few hands. The second case has been called “concentration,” a concept that applies to the mass media market.
23. There is an intense struggle among the media to keep the attention of their audience (readers, television viewers, or radio listeners). Competition among the various media is often responsible for the way in which information is presented to the public, at times giving priority to form (for example advertising or sensationalism) over content. Despite the large amount of information processed in the press rooms of the daily newspapers, radio stations, and television networks, at times members of the public have the impression that they are reading, hearing, or seeing the same headlines everywhere. In some cases this is due to the fact that these media only repeat the information that has been previously provided by local or foreign news agencies. In others, the media simply focus their attention on a limited number of events, to the exclusion of all others.
24. The concentration of media is not new in contemporary societies. As has been noted in a recent study in Europe: “Media concentration is not a new phenomenon characteristic of modern societies. What is actually new is an almost ‘incestuous relationship between politics and the media.’ Politicians use (and abuse) media for their own political promotion. Today it is virtually impossible to seize power without the help from the media. Media owners, on the other hand, use media in their possession to promote and advocate their own political standpoints, and exploit politicians to realize their private (corporate) interests. By answering the question of who the biggest media owners are we answer the question of who holds the reins of power.”[15]
25. In view of these arguments, the Office of the Special Rapporteur expresses its concern over the danger that the concentration of media ownership may pose to the formation of public opinion.
b. Economic dimensions
26. Concentration is essentially an economic phenomenon. When concentration is not adequately regulated in a given sector, it becomes an oligopoly, and in extreme cases, a monopoly. Concentration has a paradoxical impact on the efficiency of the markets. On the one hand, it reduces the number of market participants; on the other hand, it allows for the existence of larger economic units, which in many cases are financially and structurally better equipped to take on the demands and risks of a globalized economy.
27. Concentration may be vertical. In such cases integration is through a company that controls the whole set of independent economic entities at the different levels of production of a given product. For example, in the mass media it happens when a single company controls all the other companies that (1) produce (newspapers, magazines, books, films, and television production studios), (2) distribute (local distribution networks and cable companies), and (3) distribute (telephone companies, cable and satellite systems) information to consumers.[16]
28. Concentration may also occur horizontally, when the different companies on the same level of production merge. For example, when a single company controls all or most of the networks that distribute information to consumers in a given area, keeping competitors from carrying out their activities. Even though there may be competitors, they cannot compete with the larger company, for sooner or later they will begin to experience losses, precisely because of the larger company’s dominant market position.
c. Political dimensions
29. Concentration also entails a political dimension. Under certain circumstances, the dominant position of a company in the market may be of great interest for certain groups in society. For example, the state may place different administrative obstacles in the way to keep new competitors from having access to the media market. This is especially important for the competitors already in the market. These mechanisms, commonly called forms of “structural censorship,” pose a grave threat to the freedom of expression.
30. This phenomenon is often repeated in the cases of vertical concentration, where, for example, all the machinery for the production and distribution of daily newspapers is in the hands of a few firms, making it almost impossible for new competitors to access the market. As has been noted, “concentration raises the entry barriers for new companies and is thus stifling competition. The inter-dependency of politics and the media tends to block any form of creative media policy.… Concentration is also a clear and present danger to media pluralism and diversity.”[17]
31. In addition, this threat may be posed when the state-owned or public companies decide to withdraw their investments in publicity in newspapers and in radio and television stations.[18] In some small markets, economic independence may be negatively affected by concentration of ownership. To protect the markets in general, and the mass media in particular, certain regulatory mechanisms have been introduced, proposing, for example, percentage limits on equity ownership in a given company.
d. Conceptual notes
32. Though there is no final definition, major contributions have been made in Europe that have allowed for the emergence of a certain consensus regarding the definition of the concentration of media ownership. Of all the proposals put forth, the “operative” definition of the Council of Europe has won the widest acceptance. It notes:
In relation to media concentrations, the notion of pluralism is understood to mean the scope for a wide range of social, political and cultural values, opinions, information and interests to find expression through media. Pluralism may be internal in nature, with a wide range of social, political and cultural values, opinions, information and interests finding expression within one media organisation, or external in nature, through a number of such organisations, each expressing a particular point of view.[19]
33. This definition of concentration of media ownership is considered negative precisely because it is counterposed to the idea of plurality in the dissemination of ideas.[20] Concentration is seen, then, as the negation of plurality, which is a hallmark of the freedom of expression. In this framework, it has been noted that “without plurality of voices and opinions in the media, the media cannot fulfill their contributory role in democracy.... Pluralism is thus a basic general rule of European media policy.”[21]
34. According to a recent study by the OSCE,[22] the foregoing definition provides us with two key concepts. First, that the concentration of media ownership cannot be determined by traditional economic factors, such as ownership alone. Second, if pluralism and diversity of media should be protected, a certain level of concentration can be allowed to the extent that it enables the companies engaged in media operations to offer better services in the marketplace.
35. Even so, in the European context, though one may expect some positive consequences from concentration, these will be possible only if the information offered to the public is independent. In this regard: “Although concentration in the mass media sector has some advantages (the preservation of media enterprises threatened with closure, the establishment of groups capable of confronting international competition, etc.), the phenomenon of media concentrations, in particular as regards its multimedia form, may reach a threshold beyond which pluralism of information sources (freedom of information and expression) may be threatened.”[23]
36. In the inter-American system, major efforts have been made inspired by this perspective. The Office of the Special Rapporteur for Freedom of Expression has stated that “a plurality of media and the prohibition of any monopoly in this area, whatever form it should take, is indispensable for the exercise of freedom of expression ... with a view to providing a full guarantee for the exercise of freedom of expression and information for all of … society.”[24] Similarly, the Rapporteurship has stated that “assignments of radio and television broadcast frequencies should consider democratic criteria that guarantee equal opportunities of access for all individuals.”[25]
37. In addition, and on the occasion of a joint declaration signed in 2001 by the U.N. Special Rapporteur on Freedom of Opinion and Expression, the Representative on Freedom of Media of the OSCE, and the Special Rapporteur for Freedom of Expression of the OAS, it was noted: “Effective measures should be adopted to prevent undue concentration of media ownership.”[26]
38. Similarly, the Declaration of Principles on Freedom of Expression prepared by the Office of the Special Rapporteur for Freedom of Expression of the OAS in the year 2000 notes in the first part of Principle 12:
Monopolies or oligopolies in the ownership and control of the communication media must be subject to anti-trust laws, as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information.
39. Principle 5 notes in its second part:
Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.
40. Certain considerations are required by the very nature of each type of media outlet. In the case of electronic media, the administration of the radio spectrum by the state presupposes a positive posture on the part of the state–the concession of radio frequencies – which could have a direct impact on the greater or lesser concentration of the media. This is not the case of the written media, for example, where the principal posture of the state is negative, i.e. refraining from taking action.
[1] A preliminary draft of this chapter was initially researched and written by Carlos J. Zelada, a recent graduate from the Masters of Law program at HarvardUniversity, and an attorney with a law degree from the Pontificia Universidad Católica del Perú. He did the research for this report while working as an intern with the Office of the Special Rapporteur for Freedom of Expression in 2004. The Office is grateful for his valuable contribution.
[2] See: Annual Report of the Inter-American Commission on Human Rights 2000. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter IV: Evaluation of the Situation of Freedom of Expression in the Hemisphere/Guatemala, para. 120; Annual Report of the Inter-American Commission on Human Rights 2001. Volume II. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter II: Evaluation of the Situation of Freedom of Expression in the Hemisphere/Guatemala, paras. 114-117 / Honduras, para. 155; Annual Report of the Inter-American Commission on Human Rights 2002. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter II: Evaluation of the Situation of Freedom of Expression in the Hemisphere, para. 20 / Guatemala, para. 55; Inter-American Commission on Human Rights 2003. Justicia e Inclusión Social: Los Desafíos de la Democracia en Guatemala. Chapter VII: La Situación de la Libertad de Expresión, pp. 193-195, paras. 415-419; Annual Report of the Inter-American Commission on Human Rights 2003. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter II: Evaluation of the Situation of Freedom of Expression in the Hemisphere / United States, para. 107 / Honduras, para. 184 / Mexico, Annex 7: Press Releases, PREN/89/03: Preliminary Observations of the Special Rapporteur for Freedom of Expression, upon Concluding his Official Visit to Mexico, p. 301.
[3] Annual Report of the Inter-American Commission on Human Rights 2003. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter II: Evaluation of the Situation of Freedom of Expression in the Hemisphere, para. 17.
[4] Annual Report of the Inter-American Commission on Human Rights 2003. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter V: Indirect Violations of Freedom of Expression: Discriminatory Allocation of Official Publicity, pp. 187-209
[5] I/A Court H.R., Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism [hereinafter: “Compulsory Membership of Journalists...”] (Articles 13 and 29 of the American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, para. 53.
[6] I/A Court H.R., Compulsory Membership of Journalists…, op. cit., para. 70. The emphasis is in the original.
[7] Emphasis added.
[8] Annual Report of the Inter-American Commission on Human Rights 2001. Volume II. Report of the Office of the Special Rapporteur for the Freedom of Expression, Annex 5: International Mechanisms for Promoting Freedom of Expression, Joint Declaration: Challenges to Freedom of Expression in the New Century, pp. 167-168.
[9] Juan José Solozabal, Aspectos Constitucionales de la libertad de expresión y el derecho a la información. In: Revista Española de Derecho Constitucional No. 23, 1988, p. 141.
[10] Annual Report of the Inter-American Commission on Human Rights 2000. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter II: Declaration of Principles on Freedom of Expression, p. 33, para. 53.
[11]Id.
[12] Inter-American Commission on Human Rights 2003. Justicia e Inclusión Social: Los Desafíos de la Democracia en Guatemala. Chapter VII: La Situación de la Libertad de Expresión, p. 195, para. 419.
[13] I/A Court H.R., Compulsory Membership of Journalists…, op. cit., par. 56.
[14] Council of Europe. Media diversity in Europe. Report prepared by the AP-MD (Advisory Panel to the Council of Europe Steering Committee on the Mass Media (CDMM) on media concentration, pluralism and diversity questions). Strasbourg, December 2002, para. 12. Available at http://www.coe.int/t/e/human_rights/media/5_Documentary_ Resources/2_Thematic_documentation/Media_pluralism/H_APMD(2003)001%20E%20Media%20Diversity.asp#TopOfPage
[15] Sandra B. Hrvatin. Citizens before Corporations, p. 33. Round Table on Media Pluralism, Zagreb (Croatia), 28 November 2003. Challenges and Opportunities for Media Diversity and Pluralism: Controlling Concentrations and Ensuring Transparency. Organized by the Institute for International Relations, Zagreb and Media Division, and the Council of Europe. Available at http://www.imo.hr/culture/conf/medconf02/Media_Diversity_and_Pluralism.pdf
[16] The example is drawn from Ben H. Bagdikian. The Media Monopoly (6th edition, 2000), pp. xvi-xvii.
[17] OSCE, Representative on Freedom of the Media. The Impact of Media Concentration on Professional Journalism (2003), p. 30.
[18] Annual Report of the Inter-American Commission on Human Rights 2003. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Chapter V: Indirect Violations of Freedom of Expression: Discriminatory Allocation of Official Publicity, loc. cit.
[19] Council of Europe. Pluralism and Media Concentrations in the Internal Market. The Green Paper (1992).
[20] OSCE. The Impact of Media Concentration …, op. cit., p. 30.
[21] Council of Europe, Media Diversity..., op. cit., Executive Summary and para. 10.
[22] OSCE. The Impact of Media Concentration …, op. cit., pp. 30-32.
[23] Council of Europe. Committee of Experts on Media Concentrations and Pluralism. Cited by: OSCE. The Impact of Media Concentration..., op. cit., p. 31.
[24] Annual Report of the Inter-American Commission on Human Rights 2003. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Annex 7: Press Releases, PREN/89/03: Preliminary Observations of the Special Rapporteur for Freedom of Expression, upon Concluding his Official Visit to Mexico, p. 301.
Earlier the Office of the Special Rapporteur had stated that “the existence of monopolistic practices in the mass media, whether in television, radio, or the written press, is not compatible with the free exercise of the right to freedom of expression in a democratic society.” See: Annual Report of the Inter-American Commission on Human Rights 2000. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Annex 2: Press Releases, PREN/24/00: Preliminary Evaluation of Freedom of Expression in Guatemala, p. 139, para. 20.
[25] Annual Report of the Inter-American Commission on Human Rights 2003. Volume III. Report of the Office of the Special Rapporteur for the Freedom of Expression, Annex 7: Press Releases, PREN/91/03: Upon concluding his visit to Honduras, the Special Rapporteur urges the government to abolish the required association of journalists and the crime of desacato, p. 309.
[26] Annual Report of the Inter-American Commission on Human Rights 2001. Volume II. Report of the Office of the Special Rapporteur for the Freedom of Expression, Annex 5: Institutional Mechanisms for Promoting Freedom of Expression, op. cit., p. 168.
[27] Francisco Fernández Segado, El Sistema Constitucional Español (1991) p. 318. The freedom of expression has been recognized by various international human rights instruments, which “to the letter” adopt a “unifying” position in relation to the content of the freedom of expression, without distinguishing it from the freedom of information. The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, and the American Convention on Human Rights all provide for the right to freedom of expression formulated basically in these terms. The regional instruments in the European and inter-American systems were also designed fundamentally to address direct violations of this right. The most recent constitutional theory, however, tends to distinguish the two rights, assuming a “dual” position that affirms that they are generic manifestations of a right to free communication.
These documents thus embrace a unitary conception of the freedom of expression, which broadly speaking would include both the free communication of ideas and opinions, and the freedom of information, whose purpose is the transmittal of facts or data.
The Inter-American Court of Human Rights, in its Advisory Opinion OC-5/85, has recognized that the freedom of expression has a dual nature, having both an individual dimension and a social dimension: Para. 31: “In its individual dimension, freedom of expression goes further than the theoretical recognition of the right to speak or to write. It also includes and cannot be separated from the right to use whatever medium is deemed appropriate to impart ideas and to have them reach as wide an audience as possible. When the Convention proclaims that freedom of thought and expression includes the right to impart information and ideas through ‘any... medium,’ it emphasizes the fact that the expression and dissemination of ideas and information are indivisible concepts. This means that restrictions that are imposed on dissemination represent, in equal measure, a direct limitation on the right to express oneself freely….” Para. 32: “In its social dimension, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communicate his own views to others, as well as the right to receive opinions and news from others. For the average citizen it is just as important to know the opinions of others or to have access to information generally as is the very right to impart his own opinions.”