the right to public expression; a modest proposal for an important human right

7/30/2019 The Right to Public Expression; A modest proposal for an important human right

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O P E N S O C I E T Y M E D I A P R O G R A M

The right to public expression:

A modest proposal for an important humanright

Karol Jakubowicz


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T H E R I G H T T O P U B L I C E X P R E S S I O N

O P E N S O C I E T Y M E D I A P R O G R A M , 20102

Table of Contents

I. Introduction ................................................................. ..... 3II. Freedom of Expression and Freedom of the Press:

Where is the Right to Public Expression? ...................... ..... 6III. Freedom of Expression, Right to Communicate,

Communication Rights ................................................... 13IV. Semiotic Democracy in the Information Society .............. 19V. Rethinking Human Rights .............................................. 23

VI. The Right to Public Expression: What can be done? ........ 281. Structural prerequisites ............................................... 282. Public participation in content production and

management in PSB and other media ......................... 313. Universal connectivity and access to the Internet and

other ICTs as well as capacity to use them; Encouraginggeneral use of the Internet and other ICTs forself-expression and participation in public discourse .... 33

4. Reorienting the democratic process and the operationof the public authorities to bring closera user-generated State .............................................. 37

VII. Conclusion ............................................. ......................... 40Bibliography ................................................................... 41


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Karol Jakubowicz1

THE RIGHT TO PUBLIC EXPRESSION:

AMODEST PROPOSAL FOR AN IMPORTANT HUMAN RIGHT2

Printing, which comes necessarily out of Writing, I say often, isequivalent to Democracy; invent Writing, Democracy is inevitable ...

Whoever can speak, speaking now to the whole nation, becomes apower, a branch of government, with inalienable weight in lawmaking,in all acts of authority. It matters not what rank he has, what revenues orgarnitures: the requisite thing is that he have a tongue which others willlisten to; this and nothing more is requisite. The nation is governed byall that has tongue in the nation. Democracy is virtuallythere.3

Thomas Carlyle(1840)

I. INTRODUCTION

Let us remember Carlyles striking ideas. Let us also remember the use of the wordpublish by his contemporary John Stuart Mill, in his landmark work On Liberty(1859): individuals should have absolute freedom of opinion and sentiment on allsubjects, practical or speculative, scientific, moral, or theological, and freedom ofexpression for individuals is practically inseparable from their liberty of expressingand publishing opinions, which in turn is almost of as much importance as theliberty of thought itself. These thinkers have provided the inspiration for the present

essay. The need to complement expression with publication that is listened to iskey to the argument I set out here.

1 Karol Jakubowicz (Poland) was until recently Chairman, Intergovernmental Council, Informationfor All Programme, UNESCO. The present essay is written strictly in a personal capacity.

2 The author wishes to thank Mark Thompson, Marius Dragomir and Stewart Chisholm of theOSI and Toby Mendel of ARTICLE 19 for their most valuable suggestions on how to improvethe text.

3 Here, and in quotations throughout this paper, underlining is added by the present author for

emphasis.


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In my keynote address at the 1st Council of Europe Conference of MinistersResponsible for Media and New Communication Services (Reykjavik, 2829 May2009), I said to the assembled ministers:

Let me present you with a challenge which at the same time is a call togreatness greatness to which you can and should aspire if you and the

Council of Europe as a whole take the historic step of redefining freedom ofexpression into the right to public expression. What Article 10 of theEuropean Convention on Human Rights calls the right to freedom ofexpression has always been an incomplete right, making it an important,but not wholly effective pillar of democracy. As President Kekkonen ofFinland said many decades ago, the freedom of the press is the freedom ofthose who own it. The concept of the right to communicate, introducedin the 1970s, and the whole media democratization movement of the 1960sto the 1980s, testify to a feeling that all is not right with socialcommunication, and to a strongly felt desire to go beyond the socialcommunication arrangements of that time.

The right to communicate movement failed to achieve its stated goals because

leaving aside all the political controversies surrounding the New World Informationand Communication campaign of which it formed part no-one could imagine howthe State could make freedom of expression a positive right by providing everyone withthe means necessary to join the public discourse. Today, however, individuals do notneed the State to give them the tools of public expression. Anyone with the rightequipment and the right cultural and communication competence can, at least indemocratic countries, broadcast their news and views to the entire world.

In these circumstances, I called on the ministers to reconsider the practical meaning ofArticle 10, and to develop an interpretation in keeping with what is possible today, andwas not possible when the Convention was adopted.

Here I will seek to develop and argue for this idea. To do this, I will begin with a

reconsideration of the concept of freedom of expression and of the notion that freedomof the press is its natural extension and offers a means of public expression foreveryone. This will be followed by an attempt to retrace some of the highlights ofevolving thinking on democratizing societal communication and the rise of conditionsenabling individuals to speak to the whole nation. Then, it will be necessary to lookat the fit between human rights, as traditionally understood, and the InformationSociety, in order to see whether it may not become necessary one day to take anotherlook at the way those rights are formulated and indeed to proclaim new human rights.

In this context, I will examine prospects for the introduction of a formally recognizedright to public expression and, if these prospects are poor (as seems to be the case, forreasons I will look into), then ask what else can be done in the area of policy to ensureenjoyment of such a right within the existing human rights framework. A natural

backdrop for this discussion is provided by Council of Europe work in the area of


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human rights. It will become clear that many elements of a policy framework needed toimplement the right to public expression are already in place, or are now emerging.

Let me immediately enter a caveat. Much of the following discussion concernsprimarily developed and democratic countries. Obviously, developing economies andnon-democratic political systems deny individuals many of the opportunities examined

here. Nevertheless, the same issues are or will be of relevance and importance alsofor developing countries and, needless to add, for non-democratic regimes where thestruggle for basic freedom of expression is still being fought.


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II.FREEDOM OF EXPRESSION AND FREEDOM OF THE PRESS:WHERE IS THE RIGHT TO PUBLIC EXPRESSION?

Let us then begin with freedom of expression. There is no need to justify it here, but itmay be useful to recall some of the reasons for it. One of the main justifications for theneed to introduce and safeguard the right to freedom of expression are, of course, the

needs of democracy. A Norwegian Commission on Freedom of Expression (1999),identified three principles as constituting the grounds for freedom of expression:

the principle of truth, the principle of autonomy (the individuals freedom to form opinions), and, precisely, the principle of democracy.

The Supreme Court of Canada has summarized the nature of the principles andvalues underlying the vigilant protection of free expression in a society such as ours inthe following way:

Seeking and attaining the truth is an inherently good activity; Participation in social and political decision-making is to be fostered and

encouraged;

The diversity in forms of individual self-fulfillment and human flourishingought to be cultivated in generally tolerant, indeed welcoming, environment notonly for the sake of those who convey a meaning, but also for the sake of thoseto whom it is conveyed.

A similar list of arguments used to support conceptions of free speech, and specificallyof press freedom, is cited by Onora ONeill, an Irish philosopher. These are arguments:

from truth-seeking, from individual freedom of expression, and, again, from democracy.

An additional, and important, argument is, as Monica Macovei points out, thatfreedom of expression is not only important in itself but also plays a central part in theprotection of other rights under the Convention.

No international document in the human rights field, or constitution of a democraticcountry, can be complete without some form of words based on Article 19 of theUniversal Declaration of Human Rights:

Everyone has the right to freedom of opinion and expression; this rightincludes freedom to hold opinions without interference and to seek, receiveand impart information and ideas through any media and regardless of

frontiers.


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The European Convention for the Protection of Human Rights and FundamentalFreedoms (ECHR) formulates the same right in Article 10. Article 11 of the EUCharter of Fundamental Rights does the same and though it is shorter, pursuant to

Article 52(3) of the Charter, the meaning and scope of the right to freedom ofexpression it guarantees are the same as those guaranteed by the Convention. The

American Convention on Human Rights (1969) contains Article 13: 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, eitherorally, in writing, in print, in the form of art, or though any other medium of oneschoice. Incidentally, the distinction between oral expression and expression in print orthrough other (mass) media is indicative of an approach that (unjustifiably, as we willargue below) conflates individual freedom of expression and freedom of the press.

To return to the reasons why freedom of expression is so important, one of them, as wesaw earlier, is that it is seen as a bulwark of democracy. Democracy, of course, requiresfree and pluralistic public debate and the operation of an independent public sphere.

As the Norwegian Governmental Commission on Freedom of Expression put it in its1999 report, An enlightened, active and critical public debate is the cornerstone ofdemocracy. Let us therefore see whether the concept of freedom of expression issufficient to guarantee that everyone can join the debate in a way that would carry theirmessage to the general public.

The answer, I believe, is no. To explain this, let us begin by considering what freedomof expression really means.

The basic difference between a freedom and a right is, of course, that the former is anegative right (it permits or obliges inaction, i.e. non-interference with the enjoymentof a freedom), whereas the latter is a positive right (it permits or obliges action to createconditions for safeguarding the exercise of that right).

Rights that are considered positive may include civil and political rights such as policeprotection of person and property, as well as economic, social and cultural rights such

as public education, health care, social security, and a minimum standard of living. Inother words, a right imposes an obligation on someone (most often the State) to act tosafeguard peoples ability to exercise it. Rights that are considered negative may includecivil and political rights such as freedom of speech, private property, freedom fromviolent crime, freedom of worship, habeas corpus, a fair trial, freedom from slavery andthe right to bear arms (where appropriate).

That freedom of expression is a negative right is clear from paragraph 2 of Article 10 ofthe ECHR which, far from imposing obligations on the State designed to guaranteethe exercise of this right, only tells the State when it may legitimately restrict orinterfere with the enjoyment of this freedom.

Still, the Convention speaks of arightto freedom of expression. Can we therefore saythat it contains a contradiction in terms? No, because it is a right to something else: to


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protection of that freedom. Article 13 of ECHR (and Article 47 of the EU Charter ofFundamental Rights) obliges national authorities or the legal system of the state toaccord the right to an effective remedy to everyone whose freedoms (includingfreedom of expression) have been violated.

This is confirmed by the case-law of the European Court of Human Rights. In the case

ofRefah Partisi (The Welfare Party) and Others v. Turkey (Applications nos. 41340/98,41342/98, 41343/98 and 41344/98), the Court said: the State has a positiveobligation to ensure that everyone within its jurisdiction enjoys in full, and withoutbeing able to waive them, the rights and freedoms guaranteed by the Convention.This principle was amplified in the Courts ruling in the case of zgr Gndem v.Turkey(Application no. 23144/93). There, the Court clearly defined the limits of whatthe State must do in this area. It recalled the key importance of freedom of expressionas one of the preconditions for a functioning democracy. Genuine, effective exercise ofthis freedom does not depend merely on the States duty not to interfere, but mayrequire positive measures of protection, even in the sphere of relations betweenindividuals. It then went on to say: The scope of this obligation will inevitably vary,having regard to the diversity of situations obtaining in Contracting States, thedifficulties involved in policing modern societies and the choices which must be madein terms of priorities and resources. Nor must such an obligation be interpreted in sucha way as to impose an impossible or disproportionate burden on the authorities.Clearly, then, the States main obligation is to protect the enjoyment of freedom ofexpression. There is even a hint of a chilling effect here: some governments could usethis language to justify refusing to lift a finger in favour of positive action to protectfreedom of expression!

Luckily, few democratic governments behave in this way. Some, indeed, even gobeyond the language and spirit of the ECHR by recognizing, as stated in Article 100 ofthe Norwegian Constitution, that It is the responsibility of the authorities of the Stateto create conditions that facilitate open and enlightened public discourse. Here, then,freedom of (public!) expression is seen as a positive right, matched by the responsibilityof the State to take specific action to guarantee its exercise. This language was proposedby the Norwegian Governmental Commission on Freedom of Expression. In its report,it made much of the fact that given (as it puts it) that what is really important is notfreedom of expression in the private sphere, but exercise of this freedom in the publicsphere public authorities represent our positive individual rights in relation to thecommunity:

In the context of freedom of expression, the obligations of the publicauthorities have therefore been extended from not standing in the way offree expression to actively providing for public discourse and free flow ofinformation. That is to say that public authorities are today obliged to makeprovision for use of the potential of expressing opinions that was acquired bythe public on establishment of the classic freedom of expression.


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The Commission noted that an extensive institutional structure is required tosupport freedom of expression. The responsibility for providing this infrastructurerests with public authorities, with the infrastructure comprising the school system,the institutional preconditions for science and art, the diversity of the media, etc., i.e.public cultural institutions such as universities, libraries, museums, broadcasting andthe like, as well as the entire gamut of private institutions regulated and sometimes

supported by public authorities, such as media, publishers, theatres, cinemas and otherpublic meeting places. The legal regulations of access to information andcommunications are an important element of this extensive project, but constitute onlypart of the institutional framework. The history of freedom of expression, says theCommission, is primarily a history of how this institutional system has developed.

This is fine as far as it goes, but it is clear from the text that the right to publicexpression is seen by the Commission as mediated by a variety of institutions,including the media.

This brings us back to the question whether freedom of the press should indeed be seenas an extension of individual freedom of expression, and whether it is a sufficientguarantee of the individuals ability to engage in public expression.

This view is disputable on grounds of practical experience and it is also challenged as amatter of principle. As far as practical experience is concerned, the media do have arepresentation obligation to represent the political and the social. Professor JamesCurran says that democratic politics is about expressing and managing real conflicts insociety. This can and should be the role of journalism. Partisan journalism makes animportant contribution to the functioning of democracy because it offers a way in

which reality can be interpreted from the viewpoint of different social and politicalgroups. It makes press representation meaningful and advances the public presentationof different sectional concerns and solutions, facilitating the mobilisation of pressurefor a political response.

At the same time, Curran argues that there should be a division of labour in which

different sectors of the media have different roles, making different contributions to thefunctioning of the democratic system, promoting either conflict or conciliation. Thesecond role is that of the core media sector its mass television channels and, in manycountries, local monopoly dailies that are the central meeting places of society wheredifferent social groups are brought into communion with one another. These coremedia hold the ring: they should enable divergent viewpoints and interests to be airedin reciprocal debate, and alert mainstream society to the concerns and solutions ofminority groups. The norm of journalism practiced by this core sector should be thatof balanced journalism, typified by the reporting of different viewpoints expressed bythe spokespersons of opposed groups. Its features pages and studio discussions shouldalso provide a forum of debate open to different opinions.

This core sector, says Curran, is also primarily responsible for informing the public. It

should offer accurate and intelligent coverage of the news. Crucially, this means


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reporting not only major events but also the issues and problems that give rise to them.It means examining causes and consequences, not just happenings.

Thus, the health of democracy requires that partisan media be counterbalanced byimpartial core media, including public service broadcasting. By the same token, lack ofsuch a counterweight to partisan media (e.g. in young democracies, where all media

may be politically controlled) should be seen as an indication that democraticconsolidation is not yet complete.

Conventional partisan media, prominent in Europe, are often connected to, or seek torepresent, a political party or social group. There are also numerous advocacy medialinked to a particular cause or single-issue organisation. Both forms of adversarial

journalism can strengthen the infrastructure of democracy. This often includesinfluencing content and practices of mainstream media, e.g. by finding openings foroppositional voices, media monitoring, campaigns to change specific aspects ofrepresentation.

Yet, does this mean that all individuals feel they are represented in and through mediacontent, or that they themselves have a tongue which others will listen to? By nomeans, and even if so, then only indirectly and vicariously, which is no longer enoughfor many of them. In any case, the democratic or public enlightenment function is notthe only one that the media fulfill. Others include the business and entertainmentfunctions, more and more often leading to a process of tabloidization of media content.These other functions may and do come into conflict with the first one, so thatdemocratic functions, if pursued at all, are often hostage to the business needs andinterests of publishers and broadcasters in circumstances of cut-throat competition.

ARTICLE 19, the UK-based freedom of expression campaigning organization, notedin its 2009 statement, Western Europe: Freedom of Expression in Retreat in 2009, that

disproportionate weight is given [in the media] to the viewpoint of anexceptionally wealthy minority who may be prone to abusing their excessivemarket share to control editorial content and promote their own interests.

Individuals in this powerful position are courted by world leaders andopposition politicians in an effort to establish good media relations andreceive more favourable content. It is of additional concern that in severalcases senior politicians have direct financial control over media enterprises.

The Parliamentary Assembly of the Council of Europe noted in a 2007 report on thestate of European democracy that media are too often primarily business-driveninstitutions and, by prioritising their business interests over the service to the citizensand their democracy, they inevitably contribute to the distortion of democracy.

A similar comment was made by the European Parliament in a resolution of September2008:

there is a considerable risk concerning the medias ability to carry out its

functions as a watchdog of democracy, as private media enterprises are


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predominantly motivated by financial profit; whereas this carries the dangerof a loss of diversity, quality of content and multiplicity of opinions,therefore the custody of media pluralism should not be left purely to marketmechanisms.

According to John Lloyd from the Reuters Institute for the Study of Journalism at

Oxford University, British journalists have retreated from information: they havebecome obsessed with gaining power. Along the same lines, the CoE ParliamentaryAssembly calls it a matter of concern that the media in many cases tend functionally toreplace political parties by setting the political agenda, monopolising political debateand creating and choosing political leaders. If the media monopolise political debateand if journalism has become, as Lloyd puts it, an ego trip, then they do not speakfor the public, or represent the public in what they do, but are a law unto themselves inpursuing the goal of more and more power.

So much, briefly, for practical experience as a basis for the view that freedom of thepress is not the proper basis for exercising individual freedom of expression in thepublic sphere. As for matters of principle, Professor Nordenstreng rejects the automaticleap from freedom of expression to freedom of the press:

it is a myth that the standard justification for press freedom based on thedoctrine of free marketplace of ideas [with its mechanism of self-correctingtruth KJ] comes from the classics of liberalism. Milton and Mill do notprovide direct support for contemporary neo-liberalism and cannot be takenas the basis for a libertarian theory of the press.

Recalling the wording of Article 19 of UDHR (Everyone has the right to freedom ofopinion and expression), Nordenstreng makes the following argument:

the subject of human rights and fundamental freedoms is not an institutioncalled the press or the media but an individual human being. Therefore thephrase freedom of the press is misleading as it includes an elusive idea thatthe privilege of human rights is extended to the media, its owners and

managers, rather than to the people for expressing their voice through themedia The subject of the right here is everyone in the sense of allhuman beings Nothing in Article 19 suggests that the institution of thepress has any ownership right to this freedom. And the word mediaappears as an open means for the use of everyone to seek, receive andimpart information and ideas.

Nordenstreng contends that Article 19 of the UDHR stipulates that the media shouldbe in the service, if not the ownership, of the people. It is a myth, he says, that thepress and the media themselves enjoy protection of human rights and fundamentalfreedoms.

Onora ONeill, too, argues that freedom of the press and more generally of the media

cannot be justified or derived from claims for individual freedom of expression. At the


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time of John Stuart Mill, it may have been plausible to think that freedom ofexpression, freedom of the press and truth-seeking were natural allies. A free presscould then be seen as serving individual freedom of expression, enabling individuals toreach one anothers beliefs and leading them to reflect on, and test the truth of, theirown views. Today, however, the situation is different. Concentration of the mediamarket and the impact of market forces on publishing are evident. Owners and editors

seldom favour strong interpretations of individuals rights to express themselves:freedom of the press, says ONeill, is still limited to those who own one. In thetraditional scheme of things, individuals enjoy freedom of publication only to theextent that they can publish letters to the editor, or be granted a right of reply, withboth reporting and commentary controlled by the press and broadcasters.

Thus, clearly, freedom of expression and freedom of the press must be seen as failing toprovide a legal and conceptual springboard for claiming the individual right to publicexpression. As in the Norwegian case cited above, these freedoms need to be actively re-interpreted if they are to serve this function. It is not surprising, therefore, that therehave been many efforts to go far beyond them by redefining human rights for thatpurpose. We deal with these efforts below.


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III.FREEDOM OF EXPRESSION,RIGHT TO COMMUNICATE,COMMUNICATION RIGHTS

Public communication has long been based on allocutory, one-to-many, one-way, top-down modes of communication. Hans Magnus Enzensberger has called this arepressive model of communication. It reflected social relations in general and thusfavoured unequal and asymmetrical communication relationships and consequentlydetermined the content of communication.

This has long given rise to thinking about ways to change these undemocratic patternsof social communication. The German playwright Bertolt Brecht and his famous 1932essay, The Radio as an Apparatus of Communication, have long been emblematic ofthis ambition:

Radio is one-sided when it should be two-. It is purely an apparatus fordistribution, for mere sharing out. So here is a positive suggestion: changethis apparatus over from distribution to communication. The radio wouldbe the finest possible communication apparatus in public life, a vast networkof pipes. That is to say, it would be if it knew how to receive as well as to

transmit, how to let the listener speak as well as hear, how to bring him intoa relationship instead of isolating him Any attempt by the radio to give atruly public character to public occasions is a step in the right direction.

Brechts words have continued to resonate as his ideas have been embraced by moreand more people. As noted long ago by Brian Groombridge, the communicationdemocratization movement in the UK began to gain momentum as early as the 1950s,

when a new, educated and socially conscious generation discovered that the oldoligarchy seemed to sit as securely as ever at the apex of democracy and, of course, themedia. Still, it was the May 1968 generation that really launched the movement forsocial and media democratization, tied in with a reconsideration of human rights, as

well as of the concept of citizenship. A new, complex notion of full and equalcitizenship was seen as encompassing, in addition to civil, political and social rights,also cultural ones: rights to information, to experience, to knowledge and toparticipation.

The movement dedicated to reforming and opening up existing media institutionsand communication systems called for a new system that could ensure feedback, socialaccess to broadcasting organizations and programme production at various levels,participatory programming, and indeed social self-management of the media.Gerhard Maletzke has proposed three ways of democratizing communication, namelyInter-action, Co-production and Co-determination (meaning that citizens should co-determine the general policy as well as the programming of the mass media). It wasclearly realized that the democratization of communication formed part of a broaderprocess of distribution of social power and influence in society, and could not succeed

without it.


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This whole movement has borne fruit in the field of media policy in many countries inthe form of regulatory and institutional solutions providing for individual or groupaccess to the public via the broadcast media. This has included access programmes(allotting air time on public radio or television to political parties, trade unions andother social organizations), access cable channels in the US; free radio in Gemany;radio associativein France, neighbourhood radio in Sweden (where anyone could rent,

for very little money, first a studio and then a transmitter to produce and broadcastcontent); recognition of, and support for, community media in many countries (andcalls for their legal recognition and inclusion in the media system as a separate sector bythe Council of Europe and the European Parliament), etc.

In some European countries, press subsidies are expressly earmarked for minoritypublications and for boosting the diversity of the press market.

In many countries, supervisory or governing boards of public service broadcasters arecomposed of representatives of socially relevant groups (as in Germany), turningthem into parliaments whose decisions should reflect the general public interest, asemerging out of the clash of many group and sectoral interests. This is intended as apractical example of Co-determination, as proposed by Maletzke. In fact, the

Council of Europes Recommendation CM/Rec(2007)2 on media pluralism and diversityof media contentstates: Member states should invite public service media organisationsto envisage the introduction of forms of consultation with the public, which mayinclude the creation of advisory structures, where appropriate, reflecting the public inits diversity, so as to reflect in their programming policy the wishes and requirementsof the public.

There was, however, more to this than just the idea of reforming existing mediaorganizations. These debates provided the inspiration for the concept of the right tocommunicate. Brechts ideas found an echo in the right to receive and the right totransmit as the basis of any democratic culture (Williams, 1968); in each receiver apotential transmitter (Enzensberger, 1972); and in the right to communicate [as] ... afundamental human right (Fisher, Harms, 1983), later supplemented by the view that

a right to communicate includes a right to telecommunicate (Harms, 1985). A newnormative press theory, the democratic-participant media theory, emerged at that timeas a sum of new ideas on the social nature of communication.

The debate on the right to communicate took place in the context of a heated,politically charged campaign by Third World countries, aided by the then Communistcountries, to introduce a New World Communication and Information Order(NWICO). UNESCO served as the main battlefield of this campaign.

The UNESCO-appointed International Commission for the Study of CommunicationProblems (known as the MacBride Commission, after its chairman, Sen MacBride),included among its 1980 recommendations this call for an expansion of rights:


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Communication needs in a democratic society should be met by theextension of specific rights such as the right to be informed, the right toinform, the right to privacy, the right to participate in publiccommunication all elements of a new concept, the right to communicate.

It is not certain whether at that time the right to communicate had any chance of being

recognized and accepted. It is certain, however, that it was doomed by being associatedwith the broader NWICO campaign. When the US, Britain and Singapore withdrewfrom UNESCO in the early 1980s in protest against what they perceived as an anti-

Western bias of the campaign, and the threat it supposedly posed to the principle ofthe free flow of information, NWICO and the right to communicate were taken offthe official international agenda.

Nevertheless, the debate has continued, though away from formal internationalsettings. One of many documents proclaiming the right to communicate is The PeoplesCommunication Charter, first drafted in 1993 and promoted by Professor CeesHamelink, the Dutch media scholar, supported by the Third World Network (Penang,Malaysia), the Centre for Communication & Human Rights (Amsterdam, theNetherlands), the Cultural Environment Movement (USA), and the AMARC World

Association of Community Radio Broadcasters (Peru/Canada). The following coreprinciples emerged in the debates around the Charter:

1. All forms of information handling collecting, processing, storing,distributing, etc. should be guided by respect for basic human rights.

2. Communication resources (such as frequencies) should be consideredcommons, should be accessible to all in fair and equitable ways, and cannotbe regulated by market forces alone.

3. Communication in society cannot be monopolized by governmental orcommercial forces.

4. People have a right to the protection of their cultural space.5. Information and communication providers should accept accountability for

their products and services.

The 1999 version of the Chartercalled for all people to have the right of access tocommunication channels independent of governmental or commercial control; fair andequitable access to local and global resources and facilities for conventional andadvanced channels of communication; as well as for national and internationalassistance enabling people to participate in, contribute to, and benefit from thedevelopment of self-reliant communication structures.

Clearly, by 1999 no answer had been found regarding the way the individual right tocommunicate and participate in the public discourse could be exercised in practice other than by relying on the State to make requisite resources and infrastructure

available. The Charterappears to echo John Keanes 1993 call for:


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a new constitutional settlement which ensures that political power is heldpermanently accountable to its citizens... [The need for this settlement] isalso the reason why the undermining of both state power and market powerfrom below requires the development of a dense network or heterarchy ofcommunication media which are controlled neither by the State nor bycommercial markets. Publicly funded, non-profit and legally guaranteed

institutions of civil society, some of them run voluntarily and held directlyaccountable to their audiences through democratic procedures, are anessential ingredient of a revised public service model.

This would have required massive restructuring of public service media and hugeoutlays for non-profit and legally guaranteed [media] institutions of civil society. Letus note in passing that recent years have actually seen progress on this front, in theform of acceptance in many countries of community media as a third sector of themedia system, with new legislation introducing legal frameworks for their licensing andoperation. If any public funding is available to assist them, however, it is usually

woefully inadequate.

Preparations for the World Summit on the Information Society (Geneva 2003 and

Tunis 2005) reinvigorated the right to communicate debate, though the term usednow was communication rights. Civil society organizations launched a campaign forCommunication Rights in the Information Society (CRIS) and called for officialrecognition of these rights. They pointed out that communication rights are premisednot only on holding opinions and seeking, receiving and imparting information all of which are rights pertaining to a single individual or entity but also oncommunicating; that is, on the completion of an interaction between people. Theserights imply and seek to bring about a cycle that includes not only seeking, receivingand imparting, but also listening and being heard, understanding, learning, creatingand responding.

In its 2005 book, Assessing Communication Rights: A Handbook, CRIS grouped thefamily of rights that comprise communication rights within four pillars:


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Figure 1. Four Pillars of Communication Rights

A.Communicating

in the PublicSphere

B.Communicating

Knowledge

C.Civil Rights in

Communication

D.Cultural Rights

inCommunication

E.InternationalDimension of

CommunicationRights

F.Democracy andParticipation inCommunication

Governance

Al: Freedom ofexpression.

A2: Freedom ofthe press andmedia.

A3: Access to, andready availabilityof, public andgovernmentinformation.

A4: Access tocorporateinformation.

A5: Diversity andplurality of

media andcontent.

A6: Universalaccess to relevantmedia.

B1: A balancedknowledge-sharing regime,with practicalsupportmeasures.

B2: Publiclyfundedknowledgeenters the publicdomain.

B3: Affordableand equitableaccess to allmedia for

knowledge-sharing.

B4: Availability ofrelevantknowledge forall communities.

B5: Widespreadskills andcapacities to usemedia, especiallyICTs.

Cl: Right toequality beforethe law, tohonour andreputation.

C2: Informationprivacy and dataprotection.

C3: Privacy ofcommunication.

C4: Communica-tion surveillancein public and

workplace.

Dl: Communica-ting in one'smother tongue.

D2: Participationin the culturallife of onescommunity.

D3: Stimulate thesharing ofculture andcultural identity.

E1: The role ofnon-national,transnationaland cross-bordermedia andcommunication.

E2: The role andrelevance ofinternationalagreements.

FI: Effectiveparticipation bycivil society ingovernancenationally.

F2: Effectiveparticipation bycivil society ingovernancetransnationally

Given that communication rights encompass such a broad range of human rights,some might wonder what the added value of the concept of the right to public

expression could be. The answer is simple: it makes explicit what is only implicit andnot very clearly so in the way communication rights are understood. If we look atPillar A, Communicating in the Public Sphere, we will discover very little emphasison individual communication in the public sphere. Instead, communication rights areto be realised through the intermediary of the mass media. There is, I would argue, amajor qualitative difference between a general concept of communicating in thepublic sphere and a clear and unequivocal recognition of a right to public expression.The former leaves the modalities of such communication vague and unspecified, withthe implication still being that this can be achieved via intermediaries of various kinds.The latter clearly signifies that, in the language of all human rights standards, everyoneshould have a recognized right to join the public discourse in a personal capacity.


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Meanwhile, as has already been said, individuals no longer need the mass media todistribute their news and views around their own society, indeed around the world.

What this means for the right to public expression is explored below.


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IV.SEMIOTIC DEMOCRACY IN THE INFORMATIONSOCIETY

The advent of the Information Society has been caused by, and has also promoted aprocess of, technological and market convergence. This has changed traditional massmedia and has driven the emergence of new forms and modes of communication.

What we are seeing is the emergence of new media, defined by Gustavo Cardoso as allthose means of communication, representation and knowledge in which we find thedigitalization of the signal and its content, and which have dimensions ofmultimediality and interactivity.

This definition is inclusive of everything from the mobile phone to digital televisionand also embracing game consoles and the Internet. The new media combineinterpersonal communication and mass media dimensions on one and the sameplatform, because they induce organizational change and new forms of timemanagement and because they seek the synthesis of the textual and visual rhetoric, thuspromoting new audiences and social reconstruction tools.

Thus, whereas previously point-to-point communication (one-to-one) and masscommunication (e.g. broadcasting one-to-many) were separate, convergence allowsthe use of the same technology, especially the Internet, but also traditional and mobiletelevision, to say nothing of mobile telephony, for one-to-one, one-to-many, few-to-few and many-to-many communication.

One consequence of the emergence of new media in this sense is that all thesecommunication patterns can now be conducted with the use of the new digital andconvergent technologies from interpersonal to mass communication, all on one andthe same platform. The new media are promoting a fundamental change in patterns ofmediated communication, as shown in Figure 2.


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Figure 2. Changing Modes and Patterns of Social Communication Due toNew Technologies

Control of time andchoice of subject

Control of information

Central Individual

Central ALLOCUTION(push, linear)

REGISTRATION

Individual CONSULTATION(pull, non-linear)

CONVERSATION(semiotic

democracy)

Adapted from Bordewijk, van Kaam: = redistribution of information traffic due tonewtechnologies.

Repressive allocution (one-way, top-down, one-to-many communication), asEnzensberger called it, is losing its dominance in mass communication, withconsultation and interactive conversation gaining in importance.

The emergence of consultation and conversation as important modes of mediatedcommunication is aided by a new stage in the development of the Internet, known as

Web 2.0, based on an implicit architecture of participation, a built-in ethic ofcooperation, in which the service acts primarily as an intelligent broker, connecting theedges to each other and harnessing the power of the users themselves. All this,according to Stark, amounts to a revolution based on a simple concept: semioticdemocracy, or the ability of users to produce and disseminate new creations and to takepart in public cultural discourse. Users are by and large developing and posting theirown original creations. Anyone can now with access to the right technology and

appropriate communication and information literacy become a creator, a publisher,an author via this new form of cultural discourse, a platform to publish to the world atlarge that grants near instant publication and access. The publisher-centric businessmodels of the twentieth century will not last, says Stark. We will see massivedisintermediation in the next decade or so. More artists, creators, citizen journalistsand others will self-publish, and they will find sustainable ways of doing so, perhaps byselling mp3s on their website, finding opportunities for production work, or touring toa greater number of fans.

We are thus seeing the emergence of a digital commons, also known under othernames, e.g. information commons (Kranich).

The emergence of conversation on a societal scale in mediated electroniccommunication marks a new stage of social communication. The nature of this new


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stage is summed up by Kngs comments on old versus new assumptions about thenature and strategic significance of content. According to old assumptions, content isthe product of scarce creative skills and trained discriminating minds. Now, anythingcan be content and content does not have to be produced by experts. In fact, manyusers are happiest producing their own content. Moreover, the individualism and anti-authoritarianism which seem characteristic of the present age motivate especially young

people to seek sources of information and channels of communication outsidetraditional media.

All this has produced greater engagement by large numbers of individuals in socialnetworking, in forms of public communication via the Internet (blogs, etc.), andgenerally in public debate, often in the form of user-generated content available viathe media. This process of collaborative content creation in different environments,from open source through blogs and Wikipedia to Second Life, amounting tocontinuous creation and extension of knowledge and art by collaborative communities,has been called produsage. This is why mass media are sometimes described asbeing transformed into media of the masses.

Yet the extent of mass involvement in this phenomenon should not perhaps be

exaggerated, at least for now. In a 1993 paper, I coined the phrase the fallacy of theuniversal need to (mass)communicate for the idealistic assumption that just abouteveryone would wish to engage in public expression. And indeed, a 2009 Pew Internetstudy on The Internet and Civic Engagementconfirmed a tendency that is already well-known from efforts to use traditional media for direct communicative democracy,namely that the well-off and well-educated are especially likely to participate in onlineactivities that mirror offline forms of engagement. Those who join the online politicaldiscussion on social media sites are highly engaged in other political / civic venues as

well, i.e. extend their existing commitment and engagement to the new technologies.Almost one in five American internet users (19 per cent) have posted material aboutpolitical or social issues or used a social networking site for some form of civic orpolitical engagement. This works out at only 14 per cent of all adults in the USA.

Nevertheless, one can most probably expect that in developed societies a large sectionof the population will in the future be engaged in content creation and distribution viathe new technologies, either regularly or occasionally, probably with varying intensityover the course of their lives.

CRIS recognizes also another paradox underlying this approach: while freedom ofexpression, and even more so the concept of communication rights, guarantees that wecan speak our thoughts freely (the Norwegian Constitution adds that we are entitled tospeakfrankly: Everyone shall be free to speak his mind frankly on the administrationof the State and on any other subject whatsoever), it by no means guarantees thatothers can or will listen. If the concept of a positive right is to be taken seriously, thenothers should have an obligation to listen, to consider the validity of the ideasexpressed, and even to respond. Yet, of course, no-one can be forced to listen, let alone

to understand or respond. The paradox, says CRIS, can be resolved by acknowledging


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that communication rights do not seek to impose on everyone an absolute obligationto listen and respond to what others are saying. Rather, they build an environment in

which interaction and communication are more likely to occur freely and to mutualbenefit.

Leaving that aside, the major hurdles to the exercise of the right to public expression

are being removed, at least in developed countries. Individuals do not now need theState to give them the tools of public expression. Anyone with the right equipment andthe right cultural and communication competence can broadcast their news and viewsto the entire world. Anyone, from a political party to a sports club, a corporation or asingle individual can distribute content worldwide on the Internet, without themediation of journalists and editors, their editorial judgment and their standards forselecting and presenting information.

Of course, this process is not without its critics. Andrew Keen has criticised theenthusiasm surrounding user-generated content, peer production, and other Web 2.0-related phenomena. This is reminiscent of what has been called aristocratic criticismof mass culture

ONeill appears to continue this pessimistic tradition to some extent, with herinsistence on an obligation-based (rather than jurisprudential: we have freedom ofexpression because some document says so) concept of freedom of expression, on theethics of communication, quality of speech acts and on the intelligibility andassessability of their content, allowing the audience to judge the truthfulness andreliability of the information obtained, as well as the genre and intention of the author.

To this I can only say that while there may indeed be a lot of rubbish on the Internet,any such concern is far outweighed by the great democratic triumph of the almostuniversal ability, at least in developed societies, to exercise the right to publicexpression. Sometimes this produces Twitter Revolutions, but what it also means isthat with citizen journalism, community, social and other new forms of media,audiences may have access to a lot more public-spirited content than in the past. The

revolt of the masses has happened and the masses have won. The floodgates ofuniversal public expression are wide open. This is not to say that every individual willwant to take advantage of that fact, or will know how to use the new opportunitieswell, but the contemporary concept of democracy requires that the right of everyonewho wants to engage in public expression to do so should be recognized.

What chance is there of this recognition being translated into a formally proclaimednew human right to public expression? We will seek to answer this question below inthe context of a more general look at whether the Information Society does or does notnecessitate an extension or reformulation of existing human rights standards.


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V.RETHINKING HUMAN RIGHTS

Jean dArcy, the man generally credited with being the first explicitly to make the casefor a right to communicate, wrote in 1969:

The time will come when the Universal Declaration of Human Rights will

have to en-compass a more extensive right than mans [ sic] right toinformation, first laid down 21 years ago in Article 19. This is the right ofman to communicate. It is the angle from which the future development ofcommunications will have to be considered if it is to be fully understood.

In more general terms, the question whether or not new human rights standards needto be developed for the Information Society has been under consideration for sometime. The Committee of Ministers of the Council of Europe does not seem to think so.In 2005, it adopted aDeclaration on human rights and the rule of law in the InformationSociety, reaffirming that all rights enshrined in the Convention for the Protection ofHuman Rights and Fundamental Freedoms (ECHR) remain fully valid in theInformation Age and should continue to be protected regardless of new technologicaldevelopments. The Committee also acknowledged that to better respond to the new

challenges of protecting human rights in a rapidly evolving Information Society,member states need to review and, where necessary, adjust the application of humanrights instruments again making it clear that while there may be change in the waythese instruments are applied, this does not extend to the standards they lay down.

Is this all there is to say on the subject? I am not sure. Let us consider the impact ofinformation and communication technologies (ICT) and the Information Society ingeneral on human rights.

ICTs can have both a quantitative and qualitative impact on the human rights system.As for quantitative impact, they can be seen as magnifying the impactof either humanrights protection, or of their violation, since ICTs can facilitate either type of action,i.e. produce multiplier effects by means of their potentially global reach and their

instantaneous speed of communication.As concerns qualitative impact, we must consider the possibility that the InformationSociety and the ICTs are probably capable of changing the social, technological andlegal circumstances in which current definitions of human rights were developed. This,in turn, might require a redefinition or re-interpretation of at least some human rights.

Moreover, if predictions about the emergence of a web lifestyle are anything like nearthe mark, what this will mean is that enjoyment of many human rights, as indeed theperformance of many everyday activities and pursuits, will increasingly require the useof ICTs. In addition, ICTs can make such a difference and offer so many morepossibilities to exercise particular rights (e.g. freedom of expression or the right toeducation) that they can raise the enjoyment of these rights to a much higher level.This confers a new privilege on the haves (i.e. those with access to, and the capacity


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to use ICTs) and exacerbates the deprivation suffered by the have-nots (limited or noaccess to, or use of ICTs spells deprivation in the full exercise of human rights).

Four main forms of ICT impact on human rights can thus be distinguished:

1. Quantitative impact: ICTs add a new dimension (multiplier effect asconcerns impact or consequences) to existing violations of human rights, or

conversely to their exercise or protection.

2. Qualitative impact: ICTs create new forms of delinquency and new formsof crime, or conversely new forms of human rights exercise andprotection.

3. Sometimes qualitative impact results in a redefinition of a human right,primarily by adding cyberspace as a new universe for their exercise.

4. ICTs extend and enrich ways in which human rights are exercised so muchthat one can speak ofICT-enhanced human rights.

When I analysed this question for the Council of Europes Preparatory Group onHuman Rights, the Rule of Law and the Information Society (Jakubowicz, 2004),

I sought to identify which rights laid down in the European Convention on HumanRights are affected by the ICTs in what way. This is shown in Figure 3:

Figure 3. ICT Impact on Human Rights

Form of ICT Impact Articles of ECHR

Quantitative impact (multiplier effect)

Article 4 Prohibition of slavery and forcedlabour

Article 6 Right to a fair trialArticle 8 Right to respect for private and family

lifeArticle 14 Prohibition of discriminationProtocol No. 12, Article 1 General prohibition

of discriminationProtocol 1, Article 1 Protection of property

Qualitative impact

Article 4 Prohibition of slavery and forcedlabour

Article 7 No punishment without lawProtocol 1, Article 1 Protection of property

Redefinition of a human right, primarily byadding cyberspace as a new universe for itsexercise;

Article 11 Freedom of assembly and associationProtocol No. 1, Article 3 Right to free electionsProtocol No. 4, Article 2 Freedom of

movement

ICT-enhanced human rightsArticle 10 Freedom of expressionProtocol 1, Article 2 Right to educationProtocol No. 4 Article 2 Freedom of movement


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Today, I would modify this somewhat by placing freedom of expression in twocategories: both redefined and ICT-enhanced human rights. As I have tried to showhere, the fact that new technologies add the public-sphere dimension to freedom ofexpression, turning it into freedom of public expression, amounts to fundamentalchange with far-reaching ramifications for the operation of democracy.

This debate on how relevant traditional human rights standards remain in theInformation Society is bound to continue. At the very least, these standards may needto translated in ways that would spell out their practical meaning in newtechnological realities. One such example is provided by the Internet Rights Charterofthe Association for Progressive Communication, which seeks to do precisely that. Totake an example, Article 27 of the Universal Declaration of Human rights (Everyonehas the right to participate in the cultural life of the community, to enjoy the arts andto share in scientific advancement and its benefits) is translated in the Charterintothe following rights: the right to share; the right to free and open source software(FOSS); the right to open technological standards; and the right to benefit fromconvergence and multi-media content.

It might therefore appear that a proposal for a new right to public expression could

have a chance of being considered. At the present time, however, prospects for this areminimal.

Two reasons account for this: one substantive and another political.

The substantive reason is that according to some authorities and experts, the existinghuman rights standards in the field of freedom of expression (as in other fields) havenot exhausted their potential. This is clear from the stand taken by the Committee ofMinisters of the Council of Europe. This is also the position taken, for example, by

ARTICLE 19. Writing on its behalf, Toby Mendel had this to say in 2003 on theproposal for recognition of the right to communicate:

there already exists under international law broad consensus on the basiccontent of fundamental human rights and I am of the view that the various

legitimate claims made for the right to communicate can be accommodatedwithin this framework. I note, in particular, that the right to freedom ofexpression is recognised to include a positive element, placing an obligationon States to take positive measures to ensure respect for this important right.Interpretation by courts and other authoritative bodies has started toelaborate on the nature of these positive rights and, collectively, thisinterpretation broadly encompasses the legitimate content of the right tocommunicate.

ARTICLE 19 considers, in Mendels words, that the right to communicate is to beunderstood as the right of every individual or community to have its stories and viewsheard. It states further that the right of equitable access to the media and the means ofcommunication, is central to its realisation. It also encompasses a group of related


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rights including the right to pluralism within the media, the right to practice andexpress ones culture, the right to participate in public decision-making processes.

Other authors, too, note that existing human rights standards and documents alreadyprovide a basis for many of the communication rights. Cees Hamelink has provided avery extensive overview of existing international standards which can serve as the

human rights infrastructure of the Information Society (Hamelink, 2003). Also theCRIS campaign has provided an extensive list of existing international standards,underlying rights encompassed by the four pillars of communication rights and laiddown in what is known as the International Bill of Rights: the Universal Declarationof Human Rights (UDHR, 1948), the International Covenant on Civil and PoliticalRights (ICCPR, 1966) and the International Covenant on Economic, Cultural andSocial Rights (ICESCR, 1966). Let us concentrate here on those that relate to Pillar A,Communicating in the Public Sphere (see Figure 1 above):

1. Freedom of expression, including the right of the media to operate freely(UDHR 18, 19, 21, ICCPR 19).

2. Access information from public and private sources that pertains to the publicinterest (UDHR 19, ICCPR 19).

3. A diverse and plural media, in terms of sources, content, views and means oftransmission (UDHR 19, ICCPR 19).

4. Universal access to the media necessary to engage with the public sphere,including direct communication and a right to assembly (UDHR 19, ICCPR19, 21, 22).

5. An effective public sphere also requires rights not directly related tocommunication, such as the right to literacy and to a basic education (UDHR26, ICESCR 13).

As has already been said, too little attention is paid here to individual publicexpression, with the emphasis, I would say unrealistically, still being placed (as in item4 above) on the role of the media as conduits for individual public expression.

Nevertheless, elements of a right to public expression are already well established in thelegal, regulatory and institutional frameworks of many countries. Its formalrecognition, seen as building in new social and technological circumstances on theright to freedom of expression and the way it has been interpreted and implemented sofar, would thus by no means require a major leap into the unknown.

Whether or not such a prospect really exists, however, will depend on politicalconsiderations. Opening up the International Bill of Rights for possible renegotiation

would be a major political step with, unfortunately, unforeseeable consequences.International organizations, such as the Council of Europe, for example, are loath toconsider such a move. They fear that in the current international climate, the result

could be less freedom and fewer rights, rather than more.


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Without going further afield, let us consider this in the European context. MiklsHaraszti, the Representative on Freedom of the Media of the Organization for Securityand Cooperation in Europe has noted a meltdown of commitments to mediafreedom on the part of some OSCE member states (Vidal-Hall, 2009). TheInternational Federation of Journalists has long warned that the war on terror leadsto curtailing freedom of speech and of the media in many democratic states. These

processes are unfolding both in young and in established democracies. As for theformer, I once noted myself that as new power elites in those countries introduced new(or revived old) forms of control of the media, media independence may have actuallyfallen behind the general process of democratic consolidation (Jakubowicz, 2007). Thesituation may actually be deteriorating. Mark Thompson of the Open Society Institutehas called this a sort of counter-reformation: Why refrain from exercising politicalcontrol over [the media] when there are no penalties? (Phillips, 2009).

As if this was not bad enough, ARTICLE 19 noted in December 2009 that mediafreedom was retreating also in the countries of Western Europe:

There have been a number of cases that undermine this right [to freedom ofexpression], including the emergence of overly restrictive laws, violations of

journalists right to protect the confidentiality of their sources, strengthenedand applied criminal defamation legislation and the application of counter-terrorism laws as a pretext to stifle free speech.

In its statement Western Europe: Freedom of Expression in Retreat in 2009, ARTICLE19 cites a depressingly long list of violations of international freedom of expressionstandards by Western European governments and reminds all states in WesternEurope of their positive obligation to uphold the right to freedom of expressioncontained in international and European law.

Given this situation, it is not surprising that European organizations prefer to stick toexisting texts instead of opening them up for renegotiation. Formal recognition of aright to public expression and its introduction into international documents must

await more propitious circumstances, assuming that other governments will agree withthe view expressed in the Norwegian Constitution that it is their duty to createconditions that facilitate open and enlightened public discourse.


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VI.THE RIGHT TO PUBLIC EXPRESSION:WHAT CAN BE DONE?

A contributor to the right to communicate debate back in the 1970s or 1980s,evidently desperate to find a practical solution to the question of how such a rightmight be safeguarded, suggested that there should be a radio or television studio every

20 or 30 miles along major roads, so that people could have an opportunity to addressthe public, should the urge to do so overtake them while traveling.

Such extreme measures are no longer necessary. Formal recognition of the right topublic expression is not yet possible, largely for extraneous reasons. What remains isthe development of active public policy designed to promote and protect it, buildingon proactive interpretation of existing freedom of expression standards. Mendelsuggests we should call this Freedom of Expression 2.0. For example, the ARTICLE19 document Access to the Airwaves. Principles on Freedom of Expression and BroadcastRegulation says: The State should promote universal and affordable access to themeans of communication and reception of broadcasting services, including telephones,the Internet and electricity. By referring to means of communication and reception,the document clearly speaks of both passive and active access, the latter consisting inthe ability to practise public expression.

We can identify several directions of public policy oriented towards this goal:

Creating structural prerequisites on the media scene for a variety of individualand group communicators to join the public discourse;

Ensuring that the media, and especially public service media, are open to publicparticipation in management and content production;

Providing universal connectivity and access to the Internet and other ICTs aswell as capacity to use them;

Encouraging general use of the Internet and other ICTs for self-expression andparticipation in the public discourse;

Reorienting the democratic process and the operation of public authorities tobring closer a user-generated State.

1. Structural prerequisites

In the section Freedom of Expression and Freedom of the Press: Where is the Right toPublic Expression? above, we provided an indication of what effect market forces haveon the media and their (in)ability fully to represent the whole of society and provide achannel for all segments of society (let alone all individuals) to join the publicdiscourse. If this is to change, public policy must step in and complement the privatemedia sector and the market forces that shape it, with other forms of media and other

mechanisms.


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The Council of Europe Recommendation CM/Rec(2007)2 on media pluralism anddiversity of media contenttells CoE Member states to ensure that a sufficient variety ofmedia outlets provided by a range of different owners is available to the public.

In addition to public and commercial media, the media landscape should, according tothe Recommendation, include community, local, minority or social media which have

the additional advantage that their content can be created by and for certain groups insociety and can provide a response to their specific needs or demands.

First order of business is to ensure the continued existence, viability and relevance ofpublic service media

The Council of Europes Recommendation Rec(2007)3 on the remit of public servicemedia in the information societyexpresses the view of its Member states that

the public service remit is all the more relevant in the information societyand that it can be discharged by public service organisations via diverseplatforms and an offer of various services, resulting in the emergence ofpublic service media, which, for the purpose of this recommendation, doesnot include print media;

Barbara Thomass, a German media scholar, has correctly noted that if public servicemedia are still to be around in the 2020s to celebrate their centenary, they must renewthemselves in the meantime. The Council of Europe Recommendation outlines howthis must be done to ensure a future for public service media(deliberately so called, toescape exclusive association with broadcasting as the only platform for public servicecontent).4

Second order of business is to ensure a secure place in the media world for communitymedia. Their reach and audience may be small, but after a long march, they have

won formal recognition in dozens of countries worldwide.5 In Europe, the EuropeanParliament advised EU Member States in 2008 to give legal recognition tocommunity media as a distinct group alongside commercial and public media where

such recognition is still lacking. Also in 2008, a Declaration of the Committee of Ministers of the Council of Europe on the role of community media in promoting socialcohesion and inter-cultural dialogueunderlined the need of the full legal recognition ofcommunity media as a distinct media sector, alongside public service and privatecommercial media. Thus, as I told the AMARC Europe conference in 2008,community media have become flavour of the decade worldwide.

Why are they so important, all of a sudden? First, they introduce voices into publicdiscourse which would never be heard otherwise. They are an example of participatory

4 See also the European Broadcasting Unions publication, Public Service Media in the DigitalWorld, offering an extensive comment on the contents of this Recommendation.

5 See the May 2010 issue ofTelematics and Informatics, devoted wholly to community media.


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media, ideally serving as an emanation of some segment of civil society and focused onissues of importance to it. In fact, they represent what might be called representativeparticipatory communicative democracy. This may sound like a contradiction interms, but in fact in democratically structured community stations, all or most of theirmembers are:

communication facilitators (as they are involved in the running and operationof those media, contributing time, effort and money to ensure their functioningand survival);

media co-managers, able to influence the operation of their media andparticipate in the determination of their goals; and

direct or indirect communicators, as the groups views, ideas, culture and worldoutlook, formulated in a participatory manner, are represented on the air.

Thus, even if on a small scale in each case, these media are a means of exercising theindividual and group right to public expression. If enough community stations andother media operate in a society, the public debate is significantly enriched.

This is why the Principles on Democratic Regulation of Community Broadcasting,formulated by the World Association of Community Radio Broadcasters, state that allorganized communities and non-profit entities, whether they are geographic or ethno-linguistic communities or communities of interest, in rural or urban areas, have theright to establish and operate community radio or television stations. Nationalspectrum management plans should accordingly include, in all broadcasting bands, anequitable amount of frequencies reserved for access by community media and othernoncommercial media, as a means of guaranteeing their existence. This principleapplies also to allocations of new digital broadcasting frequencies. This may not alwaysbe a realistic proposition, but the opposite course of action (creating no room forcommunity media in digital terrestrial radio and television) is unacceptable.

There has so far been less scope for public policy action in the print media, but all

instruments available should be used to ensure pluralism and diversity of content, aswell as openness to individual public expression, in that sector. Moreover, with theprinted press hit hard by the economic crisis and migration of readers and advertisingrevenue to the Internet, there are more and more calls and indeed practical measures to shore up the press with public funds and assistance. In their report TheReconstruction of American Journalism, Leonard Downie, Jr. and Michael Schudsonpropose ways to support news reporting, especially at the local level. They see anindispensable role for philanthropy (foundations) and government, inter alia bysupporting the emergence of some forms of public service news-gathering organizationsand print media. (They propose that The Internal Revenue Service or Congressshould explicitly authorize any independent news organization substantially devoted toreporting on public affairs to be created as or converted into a nonprofit entity or alow-profit Limited Liability Corporation serving the public interest, regardless of its


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mix of financial support, including commercial sponsorship and advertising. The IRSor Congress also should explicitly authorize program-related investments byphilanthropic foundations in these hybrid news organizations and in designatedpublic service news reporting by for-profit news organizations.) Ideas for similarmeasures are also being advanced by other American authors (Nichols and McChesney,speak of the patriotic case for government action to save American journalism) and

in other countries. These ideas could provide public policy tools for promoting thefurther opening up of private media to individual and group public expression. Andthey show that the Council of Europe was being too cautious in its RecommendationRec(2007)3 on the remit of public service media in the information society to suggest thatthe term public service media does not extend to print media.

2. Public participation in content production and management inPSB and other media

With some exceptions, public service broadcasting (PSB) has so far largely failed torespond, in its organization, management structures and relations with civil society, tothe rise of networked, non-hierarchical forms of multi-stakeholder governance and

social relations. No one who has experienced and grown used to the interactive andparticipatory Internet culture will be prepared to accept the traditional governancearrangements of public service media. They will expect a relationship of directaccountability, partnership and participation not something many public servicemedia are prepared to enter into, even at the price of becoming increasingly irrelevantand out of touch.

Simple forms of feedback and participation (phone-in programmes, SMS and Internetvoting) are, of course common. In their policy documents, some PSB institutionsemphasize audience participation as a strategic response to the challenges in the digitalage. This is meant to provide a new source of legitimacy by replacing passive viewing

with active participation.

PSB must redefine its place in society, seeking and enabling genuine participation by,and partnership with, civil society. The Council of Europes RecommendationRec(2007)3 on the remit of public service media in the information society returnsrepeatedly to this issue and says in part: In view of changing user habits, public servicemedia should address all generations, but especially involve the younger generation inactive forms of communication, encouraging the provision of user-generated contentand establishing other participatory schemes. Participatory programming can alsomean public scrutiny of editorial policy and a broadcaster-audience dialogue aboutthis. The general purpose is re-embedding PSB in society, in the area of programming,management, and policy-making. Greater reliance on user-generated content andcollaboration with citizen journalists, without sacrificing quality and objectivity, wouldbe one way of approaching this. All this assumes, of course, that public servicebroadcasting/media will survive (or will be reconstituted in post-Communist and

developing countries, where they are still an extension of the political elite see


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Jakubowicz, forthcoming a), and will undergo a Copernican revolution allowingthem to be reinvented for the 21st century (see Jakubowicz, forthcoming b).

This is why Council of Europe Recommendation CM/Rec(2007)2 on media pluralismand diversity of media content calls on Member states to:

encourage public service media to play an active role in promoting social

cohesion and integrating all communities, social groups and generations,including minority groups, young people, the elderly, underprivileged anddisadvantaged social categories, disabled persons, etc., while respecting theirdifferent identities and needs. In this context, attention should be paid tothe content created by and for such groups, and to their access to, andpresence and portrayal in, public service media. Due attention should also bepaid to gender equality issues.

The new technologies and new modes of governance developed in recent years offermeans of implementing most if not all of the methods for democratizing public servicemedia (PSM) organizations (from the simplest, such as feedback, to the mostthorough-going, such as participation in the formulation of communication policies)that were proposed in the 1960s and 1970s:

Feedback: Email correspondence with programme makers and executives;instantaneous reaction in blogs and on websites;

Access: Online communities and social networking sites built around programmes andseries;

Access to air time, participation in programme development: User-generated content(a website established by Channel 4 (UK) allows users to generate, upload and viewfour-minute documentaries);

Participation in the organization and management of PSB/PSM: Multi-stakeholderapproach with NGO and civil society participation, online communication. (BBCNews editors maintain a blog, The Editors, because The BBC wants to be openand accountable this site is a public space where you can engage with us as muchas the medium allows. Were happy for you to criticise the BBC and to askserious, probing questions of us well do our best to respond to them.)

Participation in the formulation of communication policies: multi-stakeholderapproach with NGO and civil society participation, online communication. (TheBritish regulatory authority Ofcom has established the Ofcom PSM Review blogas part of its review of public service broadcasting for people to debate the issuesin the review.) The U.S. Federal Communications Commission has joinedpopular networking sites such as Twitter, YouTube and Facebook, launched a

website and a blog to encourage popular participation in a drawing up the nationalbroadband plan: people can vote on which topics are the most important and

suggest their own.


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The Council of Europe has launched a new project on PSB governance, precisely witha view to promoting greater openness of PSB organizations to public participation.

Public policy has fewer instruments to promote such tendencies in private media.However, as the business model of traditional newspapers and television newsoperations collapses, some changes are occurring spontaneously. In their report,

Downie, Jr. and Schudson note:Reporting is becoming more participatory and collaborative. The ranks ofnews gatherers now include not only newsroom staffers, but freelancers,university faculty members, students, and citizens We have seenstruggling newspapers embrace digital change and start to collaborate withother papers, nonprofit news organizations, universities, bloggers, and theirown readers. We have seen energetic local reporting startups, whereenthusiasm about new forms of journalism is contagious We have seenpioneering public radio news operations that could be emulated by the restof public media. We have seen forward-leaning journalism schools wherefaculty and student journalists report news themselves and invent new waysto do it. We have seen bloggers become influential journalists, and Internet

innovators develop ways to harvest public information and we have seencitizens help to report the news and support new nonprofit news ventures.We have seen into a future of more diverse news organizations and morediverse support for their reporting.

3. Universal connectivity and access to the Internet and other ICTsas well as capacity to use them; Encouraging general use of theInternet and other ICTs for self-expression and participation inpublic discourse

The outcome documents of the World Summit on the Information Society (WSIS)recognise the right of everyone to benefit from the information society. The Internet

Governance Forum that emerged out of the WSIS has made access to the Internet andICTs a major focus of its debates. The European Parliament in its recommendation of26 March 2009 to the Council on strengthening security and fundamental freedomson the Internet called for full and safe access to the Internet for all. WhereverInformation Society policy is adopted and pursued, and this is the case in a greatmajority of coun

the right to public expression; a modest proposal for an important human right

Documents