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IRIS 2009-9:Extra

ARTICLE 19

2009 Joint Statement by the Four Special Mandates for Protecting Freedom of Expression on Media and Elections

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Toby Mendel

ARTICLE 19, Global Campaign for Free Expression

This note reviews the Joint Statement adopted on 15 May 2009 by the four special IGO mandates for protecting freedom of expression - the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information. The Joint Statement focuses on the issue of media and elections.

With the assistance of ARTICLE 19, Global Campaign for Free Expression, the three special mandates at the UN, OSCE and OAS have adopted a Joint Declaration every year since 1999. Since 2006 they have been joined by the Special Rapporteur of the ACHPR (see IRIS 2009-2: Extra, IRIS 2008-4:2, IRIS 2007-2: Extra, IRIS 2006-3:3, IRIS 2005-2:2 and IRIS 2004-2:6). Each year, the Joint Declaration focuses on different thematic issues. In the past, it has canvassed such issues as defamation and ‘defamation of religions’, broadcast regulation, access to publicly-held information, secrecy laws, the Internet, openness of national and international public bodies, diversity in broadcasting, and anti-terrorism legislation.

The Joint Declarations have so far been adopted towards the end of the year, in November or December. The 2009 Joint Statement goes by a different name and was adopted at a different time of year, but it is otherwise similar to the Joint Declarations inasmuch as it develops relevant international standards in the subject area. These documents are not formally legally binding. However, as statements by leading official freedom of expression mandates, appointed by inter-governmental organisations, they provide an authoritative interpretation of the scope of international guarantees of freedom of expression. As such, they have proven invaluable to campaigners, lawyers, judges and decision-makers in addressing freedom of expression issues.

The preamble of the 2009 Joint Statement highlights the importance in a democracy of holding parties and leaders to account, particularly during elections. It emphasises that free and fair elections are possible only where the electorate is well-informed, noting in this regard the key role of the media, and particularly public service broadcasters, inter alia in framing electoral issues and communicating the platforms, policies and promises of parties and candidates, as well as the fact that only a diverse media environment can ensure that all viewpoints and political perspectives are aired during election campaigns. The preamble also expresses concern about two issues: that threats and attacks undermine the ability of the media to fulfil their proper role, including during elections, and that in many countries the media demonstrate a clear bias towards the incumbent government.

The Statement points to a number of wider environmental measures designed to protect the role of the media during elections. It calls for oversight of any election rules to be vested in an independent body, the decisions of which are subject to judicial review. It calls for the repeal of laws that unduly restrict freedom of expression contrary to international and constitutional guarantees, and for the application of those guarantees where such laws are still in force. It also calls for effective measures to prevent threats and attacks against the media, as well as to investigate such attacks when they do occur, and to bring those responsible to justice.

Consistently with the preamble, the Joint Statement places some emphasis on the need for States to promote pluralism in the media, referring back to its 12 December 2007 Joint Declaration, which focused on diversity in broadcasting (see IRIS 2009-4:2). The Statement specifically calls on States to ensure transparency of media ownership, to license different types of broadcasters, to introduce rules to limit concentration of media ownership and to put in place measures to promote content diversity. The Statement also calls upon States to prohibit discrimination by the media in the allocation of paid political advertisements, where these are permitted, another measure that can be seen as promoting diversity of viewpoints through the media.

The Statement includes a number of specific references to content issues. It reiterates the overriding need during elections to respect the well-established international standard that political figures should tolerate a greater degree of criticism than ordinary citizens. It also calls for parties and candidates to have access to a rapid remedy, in the form either of a right of correction or of seeking redress in the courts, where they have been defamed or suffered other illegal injury by a statement in the media. This is no doubt motivated by an understanding that such wrongs can unbalance an election and need to be addressed quickly, within the campaign period if possible.

The Statement provides important protection for the media against liability for statements by parties or candidates, unless the statements have been ruled illegal by a court of law or constitute direct incitement to violence, and the media outlet was able to prevent their dissemination. This represents a significant degree of protection, more than is afforded in most countries to the media during elections.

Finally, the Joint Statement includes a long section on the role of publicly-owned media during elections. Not surprisingly, it calls on them to respect strict rules of balance and impartiality, to grant all parties and candidates equitable access - defined as fair, non-discriminatory and based on objective criteria - either for free or at subsidised rates, and to ensure that the electorate are properly informed about electoral matters, including the role of elections in a democracy, how to vote and the key issues and policy positions of parties and candidates.

References
Joint Statement on the Media and Elections by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information, 15 May 2009 EN
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