Review of the draft Media Law of the Russian Federation (RF)
This text is a summary of the presentation given by Willem F. Korthals Altes in Moscow on 31 January 2003.
Introduction
The standard to be applied is Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which became applicable to the RF on 5 May 1998. Art. 10 ECHR imposes restrictions on any interference with the freedom of expression. A law is an interference. According to the case law developed by the European Court of Human Rights, a law can be an interference under Art. 10.
Some would like a stamp of approval on the basis of Art. 10 ECHR. That is difficult for two reasons: (1) Art. 10 ECHR is a moving organism, both in time and in place; (2) The European Court only takes real cases with real victims and not cases of principle. A victim can be anyone whose right to freedom of expression has been violated, either an individual or an organization (for instance, a newspaper). Yet, an attempt can be made to see if the draft Media Law complies with the Convention.
Topics to be dealt with are:
(1) the concept of legislation on mass information
(2) the main actors and their relationships
(3) the state as an actor
(4) registration and licensing
(5) some miscellaneous comments.
(1) The concept of legislation on mass information
The best media law is no media law. If there is a constitutional provision recognizing the freedom of expression, a media law is in principle unnecessary. In practice, no country can do without a media law (or media laws). So the guideline is to regulate what is necessary only (i.e., necessary in a democratic society, the standard to be applied under Art. 10 ECHR) and, in addition, to use the law as a means on instructing or educating the people. Under Art. 10 ECHR a law, in order to be an acceptable restriction on the freedom of expression, has to be adequately accessible and foreseeable, although it may be difficult to interpret it (requiring legal expertise). It is advisable to look at the law as time goes by in order to assess whether what is regulated is still necessary and what is used as a guideline still fulfills its function.
(2) The main actors
The main actors are, in order of importance in terms of the freedom of expression, the journalist, the editor(-in-chief), the publisher, the owner. In addition, the RF has the concept of the founder as a special player in the game.
Journalism is an open activity, carried out not only by professional journalists, but also by anyone else who once or on a regular or non-regular basis publishes information, opinions and/or ideas. Art. 10 ECHR states that Everyone has the right to freedom of expression. Both the drafts put a strong emphasis on journalists connected with an official news organization and leave little or no room for independent, free-lance journalists. Although the latter are not prohibited from expressing information, opinions and ideas, they enjoy limited or no rights when it comes to receiving information from state organs or attending official events. There may be a serious question as to whether the rules for accreditation as mentioned in the drafts comply with the conditions of Art. 10 ECHR.
A journalist is not a doctor who can be required to first get a diploma before he starts working in his profession or activity. That is exactly why Everyone is the first word of Art. 10. Looking at the rights and obligations of journalists, problems may occur if a journalist is required to verify the authenticity of information under all circumstances. The law on public figures as developed by the European Court leaves a lot of room when it comes to publishing information about, for instance, politicians.
All this doesn’t go to say that there can be no rules on accreditation at all. Many democratic countries have such rules. The question is whether they shouldn’t apply to a larger category of those who perform the activity of a journalist.
The second actor is the editor (or the editor-in-chief), the person or the groups of persons responsible for the editorial content of the publication. The editor should not be looked upon in a formalistic way. Editorial independence is of crucial importance. The editor should be independent from the owner and publisher. The instrument used in many countries is the editorial charter, often an agreement between the owner/publisher on one hand and the editor on the other hand. The editorial charter lists the rights and obligations of both parties and, in particular, contains rules on the independence of the editor, meaning that the owner or publisher cannot interfere with editorial decisions on a daily basis.
Since a media law is in essence a law regulating the relationship between the state and the individual, it is a question whether detailed rules on the editorial charter should be part of such a law. If possible, the question of whether and, if so, in what way there should be an editorial charter, should be left to the actors themselves. In several countries, unions of journalists editors and associations of publishers and owners have done so by way of self-regulation. Some basic provisions on editorial independence may be useful by way of instruction. Other than that, self-regulation may be a better answer.
Much of what should be said about owners and publishers has already been said above.
(3) The state as an actor
Many European countries have a history of state media, but that, indeed, is history. Nowadays, the public service broadcasting systems are the relics of this former practice. But the big difference is that the state acts as a general regulator and as a source of money at the most, but it no longer actually runs or owns media. The introduction of the state as a mass medium runs counter to this development. It is acceptable if the state (whether at the federal or the regional or the local level) issues publications containing the texts of regulations etc., but a practice in which the state acts at the same playing field with privately organized media should be avoided.
This doesn’t go to say that there cannot be state financing, either through general taxes or by means of a special broadcast fee. But in all cases, the state should refrain from exercising influence on the content of publications, other than, if necessary, by having rules obliging public service media to provide a mix of information, education, documentaries, entertainment, etc. In addition, several democratic countries have funds provided by the state which can be used for temporary subsidies or for subsidizing cultural programs etc. None of those facilities should allow the state to have an influence on the content of what is being published, however. Any of these opportunities should be provided on an objective basis, with general and objective criteria.
As such, the existence of public service media (and of broadcasting in particular) is not in violation of Art. 10 ECHR. But having state media on the same level playing field as independent media may run counter to the restrictions of paragraph 2 of Art. 10.
Although anti-monopoly regulation is, in principle, an interference with the freedom of expression, it is widely held to be acceptable as a means of enhancing the plurality of the media and the opportunity for the people to receive information and ideas of the widest possible scope. Measures restricting the emergence or the existence of media monopolies should have a legitimate aim under Art. 10.
(4) Registration and licensing
Looking at the detailed rules on registration and licensing in the drafts, one has to face the question of whether such rules are necessary and whether they do not go beyond what is needed for and required of any business. Some of the criteria seem to deal with content, such as the requirement to list the “main subjects and/or specialization” or “approximate topics and/or specialization”. As to licensing, it should be quite clear from general rules who can issue a license (and on the basis of which criteria) and who can revoke a license (and on the basis of which criteria). In addition, there should always be a means of recourse with independent courts.
(5) Miscellaneous comments
Some miscellaneous comments :
(a) The obligation for journalists to keep secret both sources of information and information goes beyond the requirements of Art. 10 ECHR as set out in, for instance, Goodwin v. UK (1996). Another question is whether provisions of this kind are not already part of the civil and criminal codes
(b) Both drafts (Art. 13 Industrial Committee and Art. 55 Fedotov draft) give the citizen the right to receive information through the mass media. This imposes a burden on the mass media. How can this be achieved?
(c) The provisions on the right to refutation give a recourse for communications which violate someone’s honor and dignity. But they also talk about reality. A sharp distinction should be made between the two categories, especially when it comes to situations in which politicians (or other public figures) are at stake.
(d) Art. 27 talks about a periodical with one issue. That sounds contradictory.
(e) The provisions on the storage of broadcast material are not quite clear as to whether they talk about both material actually broadcast and so-called outtakes (material which was recorded but not broadcast).
(f) A provision on censorship should be in the constitution and should not be part of a media law.
(g) The provisions dealing with content are vague and, therefore, may lead to over-broad interpretation (e.g., terms such as “criminally indictable deeds” and “cult of violence and cruelty”).
W.ALtes