OAS » IACHR » Special Rapporteurship for Freedom of Expression » 6. CHAPTER V - INDIRECT VIOLATIONS OF THE FREEDOM OF EXPRESSION (continuation)

Freedom of Expression

6. CHAPTER V - INDIRECT VIOLATIONS OF THE FREEDOM OF EXPRESSION (continuation)

C.   Part II.   The economic concentration of media ownership in the European and inter-American frameworks

1.         The concentration of media ownership and international instruments

 1.                  In the first efforts to legislate on human rights related to the media, the freedom of expression was understood as the right to have a written press system free of any government influence. The greatest fear was precisely that governments would subject the print media to prior censorship. When radio and television were incorporated into the field of communication, this right progressively came to encompass these sectors. All these fears, however, referred to direct violations of the freedom of expression.[1]

 2.                  The main international human rights instruments that refer to the freedom of expression, both universal and regional, and which address the concentration of media ownership tend to treat it as primarily related to indirect violations of the freedom of expression.

 3.                  As we will see below, with the exception of the American Convention, none of the general instruments–universal or inter-American–explicitly embraces this perspective. In one way or another, however, it is possible to find some nuanced references referring to plurality in the other instruments. In the regional sphere, some of them have taken up this aspect, especially in the European system.

 4.                  There is no mention of the concentration of media ownership in the American Declaration of the Rights and Duties of Man (1948)[2] or in the Universal Declaration of Human Rights (1948).[3]

 5.                  A more detailed formulation can be found in the International Covenant on Civil and Political Rights (1966), which states at Article 19(2):

 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.[4]

 6.                  Of the regional instruments, the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) is an important point of reference. Article 10 of the European Convention provides:

 1.             Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

 2.             The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 7.                  Finally, the American Convention on Human Rights (1969) notes at Article 13(1) that:

 Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.[5]

 8.                  It should be noted that the American Convention on Human Rights has a distinct feature at Article 13(3), the only provision of the general human rights instruments that expressly condemns violations of the freedom of expression by indirect means. It reads:

 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.                  As we will see in the section on the caselaw of the inter-American system, the Inter-American Court has been able to develop some of the problems provoked by concentration in terms of hampering the free circulation of ideas.

 10.              None of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms refers expressly to a right to plurality and diversity in the mass media. Nonetheless, it is widely accepted in the caselaw of the European Court of Human Rights that without free and independent media, the fundamental rights of citizens to expression, opinion, and information may be dangerously limited.

 11.              We must note, moreover, that membership in the European Union is conditioned on compliance with certain democratic standards, including those referring to the freedom of expression. Article F.2 of the Treaty of the European Union incorporates the provisions of the European Convention on Human Rights as general principles of European Community law.

 The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

 12.              The legal gap in the Council of Europe context has been partially covered with the adoption, in the framework of the European Union, of the Charter on Fundamental Rights, a document which, and which notes that freedom of and plurality in the mass media should be respected. Including plurality as part of the freedom of expression in the framework of the European Union, and in the general standards on free competition, introduces an important methodological standards for domestic and regional legislation. The Charter of Fundamental Rights of the European Union (2000) states at Article 11 that:

 1.             Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2.             The freedom and pluralism of the media shall be respected.

 13.              In 1997, the Office of the Representative on Freedom of Media was established in the context of the OSCE, in recognition of the fundamental role of the freedom of expression for European democracies. Its mandate recognizes:

 The participating States reaffirm the principles and commitments they have adhered to in the field of free media. They recall in particular that freedom of expression is a fundamental and internationally recognized human right and basic component of a democratic society and that free, independent and pluralistic media are essential to a free and open society and accountable systems of government.[6]

 14.              Similarly, in 1998 the Inter-American Commission on Human Rights created the Office of the Special Rapporteur for Freedom of Expression. In establishing the Rapporteurship, the Commission sought to stimulate awareness of the importance of full observance of freedom of expression and information in the Hemisphere, given the fundamental role it plays in the consolidation and advancement of the democratic system and in ensuring that other human rights are protected and violations reported.”

 15.              Under its auspices, the Declaration of Principles on Freedom of Expression were drawn up; Principle 12 refers explicitly to economic concentration of media ownership.

 2.         The European experience

 a.         The caselaw of the European system

 16.              In Europe, Article 10[7] of the European Convention on Human Rights sets forth the basic framework for pluralism in the mass media. The cases that will be examined below are merely some of those available from the extensive caselaw of the European Court of Human Rights.

 17.              As we have already indicated, the text of Article 10 of the European Convention on Human Rights contains no explicit reference to diversity or plurality in the media as elements of the freedom of expression. This approach has been arrived at through interpretations of Article 10 by the European Court of Human Rights.

 18.              On some occasions the Court has made reference to the freedoms of “broadcasting” and of the “press” in this context. In both cases, the references were based on the second sentence of the first paragraph of Article 10. Initially, the European Court interpreted Article 10(1) to establish that the freedom of “broadcasting” derived from the freedom of expression as well as freedom of enterprise, i.e. from the freedom to privately pursue broadcasting activities.[8]

 19.              Subsequent judgments of the Court show a trend to express the freedoms linked to the media as part of an individual right to freedom of expression established at Article 10(1) of the European Convention on Human Rights and Fundamental Freedoms.

 20.              A more functional approach to these freedoms, i.e. taking them as means of promoting the freedom of information and democracy strictly speaking, has also been recently applied, but in connection with the second paragraph of Article 10. In effect, under Article 10(2), the Court has been pointing out the importance of plurality in the freedom of expression as a decisive element for consolidating democracy.

 21.              The following cases have been selected to illustrate the European Court’s interpretation of the right to freedom of expression in the framework of the plurality to which we have been referring in this report.[9]

22.              A first especially representative case in the European context is Lentia Informationsverein et al. v. Austria (Judgment of November 24, 1993). In this case, the Court addressed a series of petitions brought by natural and juridical persons against Austria in relation to alleged violations of Article 10 of the European Convention on Human Rights. The petitioners’ application to establish radio and television stations in Austria had been rejected, for under the domestic laws and regulations, that right was restricted to the Austrian Broadcasting Corporation. The complainants alleged that it constituted a monopoly incompatible with Article 10 of the European Convention.

23.              The Court initially considered that having rejected applications to establish radio and television stations constituted “interference” with petitioners’ right to impart information and ideas. Yet this was not sufficient to determine a violation of Article 10 of the European Convention. The underlying issue was whether the interference with the exercise of this right was justified, in precise terms, within the framework of the freedom of expression.

24.              The petitioners alleged that the monopoly established on behalf of the Austrian Broadcasting Corporation was detrimental to pluralism and artistic diversity. They argued that “true progress towards attaining diversity of opinion and objectivity was to be achieved only by providing a variety of stations and programs.“[10]

 25.              The Court held that the monopoly in place in Austria was incompatible with Article 10 of the Convention:

The Court has frequently stressed the fundamental role of freedom of expression in a democratic society, in particular where, through the press, it serves to impart information and ideas of general interest, which the public is moreover entitled to receive.… Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor.

 Of all the means of ensuring that these values are respected, a public monopoly is the one which imposes the greatest restrictions on the freedom of expression, namely the total impossibility of broadcasting otherwise than through a national station and, in some cases, to a very limited extent through a local cable station. The far-reaching character of such restrictions means that they can only be justified where they correspond to a pressing need.

 …

 The Court considers that the interferences in issue were disproportionate to the aim pursued and were, accordingly, not necessary in a democratic society.[11]

 26.              Since then, and quite consistently, the Court has been highlighting the role that the freedom of expression and especially pluralism play in a democratic society. For example, in the case of Piermont v. France (Judgment of April 27, 1995),[12] the Court noted:

 …freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society.”[13]

 27.              Similarly, in Perna v. Italy (Judgment of May 6, 2003), the Court emphasized:

 Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.[14]

 28.              In the matters of Castells v. Spain (Judgment of April 23, 1992),[15] Thorgeir Thorgeirson v. Iceland (Judgment of June 25, 1992), Bladet Tromsø and Stensaas v. Norway (Judgment of May 20, 1999),[16] Fressoz and Roire v. France (Judgment of January 21, 1999), Janowski v. Poland (Judgment of January 21, 1999), and Scharsach and News Verlagsgesellschaft (Judgment of November 13, 2003), the Court has continued to reaffirm the above-mentioned principles, especially the fundamental public watchdog role of the media in democracies.

 29.              In these more recent judgments, the European Court of Human Rights has been according priority to the role the mass media play in a social, political, cultural, and democratic context. This has been done mainly through the provision of Article 10(2).

 30.              As has been noted: “The European Court of Justice considers that, in the light of Article 10.2 of the Convention, there is a compelling public interest in the maintenance of a pluralistic radio and television system … which justifies restrictions on fundamental freedoms. Article 10 of the Convention accordingly not only enshrines an individual right to media freedom, but also entails a duty to guarantee pluralism of opinion and cultural diversity of the media in the interests of a functioning democracy and of freedom of information for all. Pluralism is thus a basic general rule of European media policy.“[17]

 b.         The concentration of media ownership in Europe: Institutional framework

 31.              The concept of pluralism as part of the freedom of expression has been recognized both in the Council of Europe and in the European Union. While most of the decisions of the Council of Europe have been merely policy guidelines based on general principles, the directives of the European Union, once ratified by the national legislatures, become binding on their members.

 The European Union

 32.              The European Union’s approach is framed within the obligation to guarantee cultural diversity in Europe. This is why the community directive “Television Without Frontiers (TWF) was introduced in 1989. Through it, the European Commission required that at least half of the programming of broadcasters be of European origin. Nonetheless, this measure was not that well received by the European governments. In effect, even if the national authorities wanted to limit the process of economic concentration, they also pursued other objectives, such as preserving their domestic markets.[18]

 33.              The dilemma faced by the European Union Member States requires that they strike a balance between an appropriate level of concentration that would enable them to protect their local broadcasting markets and the need to place limits on concentration to preserve pluralism in information.

34.              In 1990, the European Parliament published the resolution entitled Media Takeovers and Mergers (OJ C 68/137-138. 15), which placed special emphasis on the need to establish restrictions on the communications media not only for economic reasons, but mainly to guarantee plurality of information and freedom of the press.

 35.              Nonetheless, several jurisdictional conflicts have arisen in this context. For example, the European Commission Green Book entitled “Pluralism and Media Concentration in the Single Market” (1992) defined the mass media as part of the “services industries of the European Union,” and accordingly subjected it to regulation by the European Union organs in charge of ensuring against economic concentration in the region, as well as the “Rules of the Single European Market.” Under these instruments, the EU’s intervention in media ownership is restricted only when it is guaranteed that the measures to be taken foster greater efficiency in the domestic markets. Pluralism is not the focus.

 36.              In this context, the domestic laws aimed at ensuring plurality in the mass media are considered by the European Commission a hindrance to achieving an efficient and unified telecommunications market for Europe. In the above-mentioned Green Book the Commission affirmed that safeguarding pluralism in the communications media is not an objective of the Community nor does it fall within its jurisdiction.”

 37.              The European Parliament reaffirmed its position in 1994 with the resolution On the Commission Green Paper “Pluralism and Media Concentration in the Internal Market” (OJ C 44/179. 14). Nonetheless, there is widespread resistance on the part of the Member States to accept a common framework regarding economic concentration applicable to the media. The European Parliament continued its negotiations, insisting on the dangers posed by concentration to pluralism of information. As a result, the Commission proceeded to debate a new directive entitled Media Ownership.

38.              Finally, in 2003 the matter was discussed once again as part of the agenda of both institutions. Once again the Commission’s approach was to consider regulation of the media as a strictly economic matter, controlled, therefore, by competition law. This has spurred a broad response by the Council of Europe, the European Parliament, and the OSCE, who believe the approach should accord priority to plurality of information as an essential component of the freedom of expression.

 The Council of Europe

 39.              The Council of Europe has been making major efforts to regulate some aspects related to freedom of expression and the European Convention on Human Rights and Fundamental Freedoms. The goal in this framework is to harmonize principles so as to offer a common framework to the European states. Yet none of these instruments refers to economic concentration directly.

 40.              The Council of Europe began its first debates on economic concentration in 1989. Like Television Without Frontiers, the goal was to be able to reach certain policy agreements that would make it possible to build a platform for reaching common agreements on regulation, looking to the future. To this end, the Council of Europe Steering Committee on the Mass Media (CDMM) was constituted. Initially the project consisted of examining pluralism within the common framework for the regulation of mass media and media ownership in each member country. Several questionnaires were distributed to the Member States to achieve this objective. Nonetheless, the methodology used was harshly criticized, ultimately leading to the project’s demise.

 41.              Nonetheless, the Council of Europe has published some studies, statistics, and reports that examine the issue of the economic concentration of the mass media. Only once has a regulatory text been adopted, the Recommendation on Transparency, in 1994.

 42.              The Council of Europe has set in motion an interesting supervisory mechanism through a network of national delegates in each MemberState who report on media structures and regulations related to economic concentration. A Committee of Experts of the Council analyzes and develops the material provided by the national delegates. The Committee can suggest measures to the CDMM, and to other members of the Council, including the Council of Ministers, which is responsible for media policies. Nonetheless, this organ is temporary and may be dissolved at any moment.

 43.              As we have already seen, in the context of the European Union the approach to media issues is somewhat different, further from the human rights dimension that has characterized the Council of Europe’s approach. The European Union perceives the problem in the context of economic integration and the establishment of an internal common market.

 44.              This perspective, however, is not at odds with the purposes of the Council of Europe. For example, since the late 1980s, the European Parliament has been promoting initiatives to halt the rapid growth of economic concentration in the media, but from the perspective of pluralism as an essential element of European identity. The conflict that has arisen with the European Commission, however, has hindered further progress.

 3.         The inter-American experience

 a.         The caselaw of the inter-American system

 45.              The Inter-American Court of Human Rights has had the opportunity to address the issue of the concentration of media ownership tangentially, on a few occasions, through its caselaw. Decisions in contentious cases as well as advisory opinions contain references to pluralism and concentration of media ownership.

 46.              Of key importance in the inter-American sphere is Advisory Opinion OC-5/85, of November 13, 1985, on Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, in which the Inter-American Court of Human Rights stated:

 If freedom of expression requires, in principle, that the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media, it must be recognized also that such media should, in practice, be true instruments of that freedom and not vehicles for its restriction. It is the mass media that make the exercise of freedom of expression a reality. This means that the conditions of its use must conform to the requirements of this freedom, with the result that there must be, inter alia, a plurality of means of communication, the barring of all monopolies thereof, in whatever form, and guarantees for the protection of the freedom and independence of journalists.

...

Furthermore, given the broad scope of the language of the Convention, 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."[19]

 47.              In the same advisory opinion, the Court held, with respect to “indirect” violations of the freedom of expression, that

Article 13(2) must also be interpreted by reference to the provisions of Article 13(3), which is most explicit in prohibiting restrictions on freedom of expression by "indirect methods and means... tending to impede the communication and circulation of ideas and opinions." Neither the European Convention nor the Covenant contains a comparable clause….

 Article 13(3) does not only deal with indirect governmental restrictions, it also expressly prohibits "private controls" producing the same result…. Hence, a violation of the Convention in this area can be the product not only of the fact that the State itself imposes restrictions of an indirect character which tend to impede "the communication and circulation of ideas and opinions," but the State also has an obligation to ensure that the violation does not result from the "private controls" referred to in paragraph 3 of Article 13.

…

 that same concept of public order in a democratic society requires the guarantee of the widest possible circulation of news, ideas and opinions as well as the widest access to information by society as a whole. Freedom of expression constitutes the primary and basic element of the public order of a democratic society, which is not conceivable without free debate and the possibility that dissenting voices be fully heard.[20]

 48.              It should be reiterated that Principle 12 of the Declaration of Principles on Freedom of Expression, prepared by the Office of the Special Rapporteur for Freedom of Expression of the OAS, notes that:

 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.

 49.              As regards plurality as part of the freedom of expression, in the Baruch Ivcher Case, the Inter-American Court of Human Rights held as follows:

 Regarding the second dimension of the right embodied in Article 13 of the Convention, the social element, we should indicate that freedom of expression is a medium for the exchange of ideas and information between persons; it includes the right to try and communicate one’s points of view to others, but it implies also everyone’s right to know opinions, reports and news.[21]

 50.              In addition, in the case of Herrera Ulloa v. Costa Rica, the Court noted:

 So there is agreement among the different regional systems for the protection of human rights and the universal system in terms of the essential role of the freedom of expression in the consolidation and dynamics of a democratic society. Without effective freedom of expression, materialized in all its terms, democracy vanishes, pluralism and tolerance begin to break down, the mechanisms for citizen review and complaints become inoperative, and clearly fertile ground begins to be laid for authoritarian systems to take root in society.[22]

 b.         The concentration of media ownership in the Americas in the Declaration of Principles on Freedom of Expression

 51.              Principle 12 of the Declaration of Principles prepared by the Rapporteurship in 2000 notes:

 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. In no case should such laws apply exclusively to the media.[23]

 52.              The Rapporteurship specifies that the last sentence should be read and interpreted in light of the object and purpose of Principle 12, which emphasizes the inconsistency between monopolies and oligopolies in the mass media and the freedom of expression and democratic standards that ensure equitable distribution in their ownership.

53.              Principle 12 is based on the notion that if there were monopolies and oligopolies in the mass media, only a small number of individuals or social sectors could exercise control over the information that is made available to society. Accordingly, individuals could be deprived of the right to receive information from other sources.

 54.              The Office of the Special Rapporteur for Freedom of Expression of the OAS considers that this provision does not represent any limitation whatsoever on the duty of the state to guarantee, through its legislation, plurality in media ownership, insofar as monopolies and oligopolies “as they conspire against democracy by limiting the plurality and diversity which ensure the full exercise of people’s right to information.” Nonetheless, the Office of the Special Rapporteur is of the view that the competition law framework can often prove insufficient, particularly with regard to the awarding of radio frequencies. It does not, therefore, stand in the way of an antitrust regulatory framework that includes provisions to guarantee plurality, mindful of the special nature of the freedom of expression. In light of Principle 12, the states should not adopt special provisions in the guise of antitrust laws for the media whose actual purpose and effect is to limit the freedom of expression.

 D.        Conclusions

 1.                  The Office of the Special Rapporteur reiterates that monopolistic and oligopolistic practices in mass media ownership have a serious detrimental impact on the freedom of expression and on the right to information of the citizens of the Member States, and are not compatible with the exercise of the right to freedom of expression in a democratic society.

 2.                  The continuous complaints received by the Office of the Special Rapporteur in relation to monopolistic and oligopolistic practices in mass media ownership in the region indicate that there is grave concern in several sectors of civil society with respect to the impact that concentration of media ownership may represent where it comes to ensuring pluralism as an essential element of the freedom of expression.

 3.                  The Office of the Special Rapporteur for Freedom of Expression recommends to the OAS Member States that they take measures to impede monopolies and oligopolies in media ownership, and adopt effective mechanisms for implementing them. Such measures and mechanisms must be compatible with the framework of Article 13 of the Convention and Principle 12 of the Declaration of Principles of Freedom of Expression.

 4.                  The Office of the Special Rapporteur for Freedom of Expression considers it important to develop a legal framework that establishes clear guidelines for defining criteria for a balancing test that accords weight to both efficiency in the broadcasting market and pluralism in information. The establishment of mechanisms for supervising these guidelines will be fundamental for ensuring pluralism in the information that is made available to society.

 5.                  The Rapporteurship for the Freedom of Expression will continue to review these practices as they evolve.

 

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