Right to Communicate – ARTICLE 19 (2003) — Comprehensive Study Notes
Introduction
Topic: A discussion about creating a formal statement (declaration) on the ‘right to communicate’ at a global meeting (World Summit on the Information Society or WSIS).
Main concerns of supporters: Worries about media becoming too similar, and minority, differing, or local voices not being heard enough. Also, globalization and businesses taking over media are seen as threats.
Government’s role: Governments can control media and telecom. There’s also concern about big media companies dominating and threatening free speech.
ARTICLE 19’s definition: The right to communicate basically means “every person or group has the right to have their stories and opinions heard.”
Why a formal statement is needed: It can help everyone agree, guide decision-makers, courts, and other groups to respect human rights. But it must not support ideas that go against rights we already have.
Nature of the ‘right to communicate’: It should be a broad term that covers many things, not a brand-new, separate right. It should fit within existing rights and rules.
Core idea: Allowing people to fully express their opinions and freedom of expression is key to making the right to communicate real. Communication also means having the right to get information from both government and private sources.
Key parts (to be explained later): Diverse media, fair access to media and communication tools, the right to use one's culture and language, taking part in public decisions, getting information from government bodies, limits on what can be said, and rights to privacy and anonymity.
Goal of this document: To explain these parts using proof from international laws.
The Right to Communicate
The right to communicate is deeply connected to the established right to freedom of expression, which is a basic human right vital for democracy.
UDHR Article 19 promises:
The unlimited right to have opinions.
The right to look for, receive, and share information and ideas using any media, no matter where it comes from.
Governments must actively work to make these rights real (not just stop bad things from happening).
ICCPR Article 19 confirms this, meaning governments have a positive duty (through laws, rules, and practical actions) to allow freedom of expression.
This overall framework suggests several important rights that make up the right to communicate:
The right to a varied and diverse media.
Fair access to media and ways of communicating.
The right to practice and show one’s culture, including using one's language.
The right to participate in public decision-making.
The right to get information, including from government organizations.
The right to be free from unfair limits on what can be said or shared.
Privacy rights, including the right to communicate anonymously.
This document argues these parts fit with, and can be understood within, current international law.
II.1 Pluralism
Core idea: A varied and independent media environment is crucial for people to get information from many different sources.
Key legal sources and statements:
European Court of Human Rights: For information and ideas of public interest to be truly shared, there must be variety (pluralism).
Inter-American Court: Freedom of expression means media must be open to everyone without unfair treatment. No groups should be blocked from accessing media.
Practical ways to encourage variety (examples):
Fair schemes to support media (subsidies).
Rules about showing local content.
Encouraging local community radio and TV.
Tax breaks for new media companies.
Promoting the creation of local content.
Indirect help like ensuring electricity or paper for news, modern communication tools, and training.
Public service broadcasting (PSB) as a key tool for variety:
PSB should be protected from government control and truly serve the public.
PSB should actively promote a variety of information and viewpoints.
Legal and policy examples:
German Federal Constitutional Court: Boosting variety is a constitutional duty for PSBs (e.g., in 1981, they said PSB must ensure many opinions are expressed, not just be free from government control).
Council of Europe and UNESCO documents support PSB and variety, like the Alma-Ata Declaration (1992).
Community broadcasting is highlighted as a way for marginalized groups and local communities to have a voice.
Africa’s Declaration on Freedom of Expression (2002): Stresses fair sharing of radio frequencies and supporting community broadcasting to help poor and rural communities get access.
Internet and local content:
Community broadcasters and publishers should have better ways to share content online, including access to equipment and training.
Link to development: Enjoying the right to communicate is connected to a society’s economic development. Global inequalities in media development and information access mean specific development efforts are needed.
II.2 Equitable Access
International law requires governments to ensure fair access to communication tools, which means both stopping bad things and doing good things:
Negative: No unfair limits on access (e.g., difficult licensing for journalists, small publishers, or internet providers).
Positive: Encourage variety and diversity through supportive laws and policies.
Licensing and monopolies:
Allowing broadcasters to be licensed is okay if their independence and freedom of expression are maintained. Variety should be a factor in licensing.
Government-run or private company monopolies in broadcasting are unfair limits on free expression. Rules must prevent monopolies.
Past legal rulings:
UN Human Rights Committee (1983): Governments should take steps to prevent government or media control that would hinder free expression.
Zimbabwean Supreme Court (Retrofit v. PT C): Any restriction or monopoly over communication that stops people from receiving and sharing information violates the right to free expression.
Positive access actions in telecommunications:
Universal service commitments: Ensure services (like phone lines) are available to everyone at affordable prices. Examples include a US federal law from 1934 and EU rules requiring affordable access to national/international calls.
Internet access and development:
The Internet offers a cheap and effective way to share information. There are calls to remove price and policy barriers to Internet access (Genoa Plan of Action, 2001).
The UN and ECOSOC support public access points for information and communication technology (ICT) for all, in line with global development goals.
National and international policy alignment:
The Millennium Declaration and UN Secretary-General’s reports emphasize increasing access to information and ICT for development.
II.3 Freedom to Practice One’s Culture
Cultural rights are key to diversity in society and are strongly linked to freedom of expression.
Legal basis:
UDHR Article 27: Everyone has the right to freely participate in their community’s cultural life, enjoy the arts, and benefit from science.
ICESCR Article 15: Governments must actively promote and spread culture; responsibilities include protecting, developing, and sharing science and culture.
Minority and language rights:
The UN Human Rights Committee says culture includes many forms, like how people live off land/resources and traditional activities. Governments might need to take active steps to protect these rights and ensure minorities can participate in decisions that affect them.
The right to use one’s own language is a well-established part of freedom of expression and ICCPR Article 27. This is both an individual and group right.
Positive government actions to protect language and culture include:
Teaching minority languages in schools.
Allowing language groups to create their own schools and training centers.
Encouraging media access for minority/language groups (funding for minority broadcasting or shows about minority issues).
Ensuring public service broadcasters have minority representation in staff and programming.
Examples cited:
European Framework Convention for the Protection of National Minorities (1995) and its rules on minority language education and media access.
II.4 Right to Information
The right to information helps information flow between the public and government. Access to information held by government bodies is vital for people to participate in democracy.
Foundation and international recognition:
UN General Assembly Resolution 59(I) (1946): Called freedom of information a basic human right and a test of other freedoms.
All three regional human rights systems have made official statements on freedom of information. Many countries have laws allowing access to government information (e.g., Bulgaria, Fiji, India, Israel, Japan, Mexico, etc.).
Global governance and information players:
UNDP, World Bank, and regional development banks follow policies of openness. Public information should be available to everyone and to those using or protecting their rights.
Private companies and information rights:
As private multinational companies become more powerful, there’s a push to recognize limited rights to get information from them, as seen in some countries’ constitutions (e.g., South Africa).
Model Freedom of Information Law:
ARTICLE 19’s model law states that anyone asking for information from a private company, if that information is needed to exercise or protect a right, should be able to get it, subject to law.
Intellectual property concerns and the public domain:
Increasing intellectual property (IP) rights might limit access to information and ideas (e.g., genome data, copyrighted content).
The public domain (information freely available to everyone) should be protected from being claimed as private property, to safeguard scientific and academic free expression.
II.5 Right to Participate in Public Affairs
Protected by ICCPR Article 25:
Every citizen has the right and chance to take part in public affairs, directly or through chosen representatives, and to vote and be elected in real, regular elections with universal and equal voting rights and a secret ballot.
Why participation matters for the right to communicate:
The ability to influence public decisions is essential for meaningful participation and for using other rights.
Role of freedom of expression in allowing participation:
Human Rights Committee (HRC) has said that freedom of expression is crucial for truly exercising the right to participate. Active steps should address problems like illiteracy, language barriers, poverty, etc.
Information about voting should be available in minority languages. Pictures/symbols can help voters who can’t read.
Media as a watchdog and information channel:
Media should report on public affairs and have access to public decision-making meetings (e.g., Parliament) to inform the public.
II.6 Restrictions on Freedom of Expression
Legal rules for restrictions:
ICCPR Article 19(3) allows limits if they are set by law and truly necessary for specific valid reasons: (a) protecting the rights or reputation of others; (b) national security or public order; (c) public health or morals.
Strict interpretation and risk of abuse:
Limits must be understood very narrowly and pass a tough three-part test (must be allowed by law, have a valid goal, and be necessary).
The three-part test explained:
Provided by law: The restriction must be clearly written in a law.
For a legitimate interest: It must protect one of the valid reasons listed.
Necessary: It must be essential to achieve the goal; this is a strict test, meaning it can’t just be useful or desired.
Legal precedents and clarifications:
European Court of Human Rights cases emphasize that “necessary” means a “pressing social need” and that restrictions should be the least intrusive way to achieve the goal.
Examples: The Sunday Times v. United Kingdom; Handyside v. United Kingdom; R. v. Oakes (Canadian case); Kruslin v. France; Halford v. the United Kingdom; etc.
Practical implications:
Laws should be exact, not vague. Broad, unclear restrictions are not acceptable. Governments must create measures that specifically target the valid goal and cause the least possible harm to expression.
II.7 Anonymity and Freedom from Unwarranted Surveillance
Anonymity and privacy protections are key to the right to communicate:
Anonymity helps free expression, protects against revenge, financial pressure, social exclusion, or other obstacles.
Using encryption and tools that hide your identity should be protected. Restrictions on these tools can hinder the right to communicate.
Safeguards for surveillance:
Watching and monitoring people should be very specific, legally regulated, and overseen by independent bodies (like judges).
There should be rules like reporting how many operations were done and their results, and regular oversight by parliament or special surveillance committees (e.g., a surveillance commissioner).
These protections apply to both government and private companies.
Legal rulings and practices:
European Court of Human Rights: Monitoring in the workplace interferes with private life and should be regulated.
The document mentions examples like the UK and Canada’s systems and domestic legal protections (e.g., the UK’s Regulation of Investigatory Powers Act and the Ontario/Canadian context).
III Conclusion
The right to communicate is defined as the right of every person or group to have their stories and opinions heard.
Fully putting into practice freedom of opinion and expression, and ensuring fair access to media and communication tools, are central to making the right to communicate real.
The right to communicate is a broad idea, covering:
The right to look for, receive, and share information and ideas.
The right to media diversity and fair access.
The right to practice and express one’s culture.
The right to participate in public decisions.
The right to get information from government bodies.
Supporting rights including the right to anonymity and protection of private life.
A Declaration on the Right to Communicate, structured this way, would help continue to put into practice the International Bill of Rights.
Note: The document refers to the McIntyre v. Ohio (1995) case regarding anonymity and its connection to larger rights frameworks.