Index

The Enabling Environment For Free and Independent Media
By Monroe E. Price & Peter Krug

Chapter 5: The Broader Enabling Environment

5.1 New Technology and the Enabling Environment

Almost all of this study has dealt with the traditional media: print and radio and television broadcasting. Already, however, the extent to which stable democratic institutions are furthered by the media turns on new media technologies as well. In this section, elements of these new technologies, especially satellite and the Internet, are discussed – perhaps too briefly given the growing importance of the subject.

Increasingly, access to the information bases of the Internet is a major indicator of the openness of a society. One question is whether domestic journalists and editors have sufficient access to inform their publications and make them more attractive to readers. This is a question of training, availability, and cost. Restrictive states have sought ways to ration access to the Internet, through high transmission fees, limited licenses for Internet Service Providers, or specific approval for use of such facilities. An enabling environment would promote the use of access to the Internet by the press, as well as by citizens at large. The Internet appears, at least for the elite, to be one of the least expensive means of gaining a wide variety of views without the intermediation of the state.

What is often overlooked, however, in the Internet and democratic processes, is the value of ensuring that there is an information policy that affirmatively ensures public access to information points and also seeks to ensure that there is civic information available on the local network. Over the next decade, the Internet may replace (and certainly will complement) broadcasting and print media as the mode through which a society becomes informed. The kind of effort that WorldTel is undertaking in Southern India and elsewhere, seeking to establish low-cost access to terminals in Tamil Nadu, is an example of a positive way of reforming, shaping, and creating a more democratic information space. The availability of Internet access may also be a method of raising expectations for the local press. If readers are exposed to a more competitive world standard, they may be more demanding of publishers within the country.

One important mode of encapsulating this idea is “universality of access by the public to the media,” especially those new media in which information specifically becomes part of public transactions. The U.S. and Europe have considered a framework for making telephony and now Internet more universally available. The Council of Europe has stated that “states should foster the creation and maintenance of public access points for all to a minimum set of communication and information services in accordance with the principle of universal community service.” A Committee of Ministers set of recommendations urged that

Member states should encourage public authorities at central, regional and local levels to provide the general public through new communication and information services with the following basic content and services:

a. Information of public concern;

b. Information about these public authorities, their work and the way by which everyone can communicate with them via new communication and information services or through traditional means;

c. The opportunity to pursue administrative processes and actions between individuals and these public authorities such as the processing of individual requests and the issuing of public acts, unless national law requires the physical presence of the person concerned; and

d. General information necessary for the democratic process.1 

Public education to increase familiarity with the Internet, comfort with its use, and an understanding of its potential is another part of the enabling environment. Singapore, though historically restrictive in many respects, has made it a specific goal to ensure that virtually the entire population has access to the Internet and becomes literate in its use.

An extremely important element of the enabling environment for the Internet is the security of communications. Here, a major question is the extent to which the population thinks that the government monitors websites or collects information on usage by individual citizens or associations. Often, the very architecture of the Internet determines the nature of government control.

Internet cafes can become the new coffeehouses of political discourse. On the other hand, they can, and in some societies do, mask a policy in which access is restricted to particular physical locations, and the computers have access to a highly censored series of websites and servers.

The regulation of access to signals from satellites, including direct broadcast satellites, is another “new technology” set of rules with implications for transitions to democracy. These rules include prohibitions on satellite dishes or policing of dishes that are pointed to prohibited satellites or a satellite that is carrying undesirable channels. Turkey, for example, sought to control receipt of the then-Kurdish satellite signal, MED-TV, by forbidding the sale of dishes that could capture it.

Another means of limiting the widespread viewing of certain satellite signals (whether news or entertainment) is the imposition of restrictions on the freedom of choice exercised by cable television operators. India, during one of its recent conflicts with Pakistan, forbade the carriage and retransmission of Pakistani television on domestic cable television systems. China has taken steps to discourage the downlinking of BBC into its vast terrain.

It is not clear whether any restriction on information circulating on the World Wide Web is possible or desirable as part of a strategy for moving a transition society towards more stable democratic institutions. Still, it is standard in many societies for there to be concerns about certain categories of content, and for those concerns to take the form of regulation. The debate is fierce over whether restrictions that are generally deemed permissible with respect to radio and television can be acceptable where the new technologies are concerned. These include restrictions on hate speech when closely defined, as in Brandenburg v. Ohio in the U.S., on speech that can be deemed destabilizing to society, or on speech that is subject to the regulatory aims identified as legitimate in paragraph 2 of Article 10 of the European Convention on Human Rights.

5.2 Role of Civil Society and NGOs

In modern democratic societies, the process of developing appropriate and stable institutions increasingly relies on associations and groups that are independent of government. But as Julie Mertus has written, “Civil society cannot flourish where there are inadequate legal assurances of their ability to operate autonomously from government.” These associations play a central role in the development of civil society, but they require a set of rule of law mechanisms that permit their independent existence and foster their growth. A strong civil society also demands and oversees legal constraints on state power and the accountability of state actors.

Here, too, the vast increase in the number and effectiveness of non-governmental organizations is significant as an element of the enabling environment for free and independent media. NGOs are valuable as part of the armament of leavening government authority and shaping media structures, as part of the process of production of content, and for using media to advance pluralism in a society.

NGOs help assure a vital civil society, and, conversely, a healthy civil society produces effective NGOs. Without a civil society, one that is interested, active, a user of the media, an enabling environment proper for free and independent media cannot really exist.

The increased role of civil society marks a shift from “government” to “governance,” with governance involving a far larger group of participants and players. According to the World Bank:

Good governance is epitomized by predictable, open and enlightened policy making, a bureaucracy imbued with a professional ethos acting in furtherance of the public good, the rule of law, transparent processes, and a strong civil society participating in public affairs. Poor governance is characterized by arbitrary policy making, unaccountable bureaucracies, unenforced or unjust legal systems, the abuse of executive power, a civil society unengaged in public life, and widespread corruption.2 

5.3 Education in the Importance of Rights

There are those who believe that the “imposition” of a rights structure will only be temporary if such a system did not arise from the expressed willingness of the people. An occupation army can impose a set of laws, put judges in place, and decree a rule of law. But when the external force disappears, or when the precipitating cause for transition loses its sway, then the particular elements of law and their impact on democratization might begin to weaken.

As a result, one important element of the enabling environment is continuing attention to public understanding, public perceptions, and public demand that undergirds a society hospitable to free and independent media. The very functioning of the rule of law in the media field has its own educational benefits. But as free speech norms are fragile even in the most stable or democratic systems their acceptance cannot be taken for granted. In the United States, non-governmental organizations like the Freedom Forum are constantly testing the public pulse on attitudes regarding free speech principles. Segments of the press, large newspapers, broadcasters, and motion picture companies invest in campaigns to educate and foster tolerance, acceptance, and comprehension of the complexities of living in a free society.

This is an outermost circle of the enabling environment: a circle in which citizen preferences are a key to the long-term operability of the rule of law and a system of laws that facilitate the contribution the media can make to the democratization process.

5.4 Copyright and the Enabling Environment

An area of growing interest and importance for the enabling environment is copyright law. The practice in many transition societies, particularly by independent media, has been to be relatively cavalier about legal rights of owners of programming, especially films and other programming produced abroad. Cost of programming can be one of the great impediments to the launching of new media enterprises, and the actual costs of obtaining consents may be, themselves, more than a startup can provide.

On the other hand, attention to copyright law has a certain justice to it and, of course, respect for copyright law is an integral aspect of respect for law generally. In that sense, copyright becomes a key determinant as to whether the society is moving towards becoming a rule of law society. There can be heavy costs associated with being a “rogue state” with respect to intellectual property.

There is a hazard, in a time that favors protection, of closing off information or making its use too expensive, and copyright must be fashioned so that individuals have access to a liberal public domain of language and ideas for use in their creations. The doctrine of fair use or its equivalents in other countries is aimed at providing breathing room.

5.5 Background and Foreground Factors

The character of the citizenry and its capacity to use such elements of the press that are available are important when discussing the broader elements of an enabling environment. Indeed, media independence may depend on the capacity of the audience to treat information wisely and critically and draw inferences from it. There is a special kind of literacy that might be demanded, not just literacy in the conventional sense, but literacy that encompasses a desire to acquire, interpret, and apply information as part of a civil society.

To the extent that the independence of media depends on advertising or subscriber support the state of the economy in general is also significant. Financially struggling media have marked transitions worldwide. Without a viable advertising economy or a vigorous economy that provides workers with salaries that allow them to be potential subscribers – media may become dependent on government subsidy or industry sectors that bias output.

At its broadest, of course, what counts is the development of a custom or attitude, a general notion in the society that information about government is available, important, and trustworthy. It is difficult to sustain excellent free and independent media without a public that has a continuous appreciation of the need for its output. Education, literacy, tradition, desire, financial capacity, and public demand are all elements that combine to bring about such a situation.

 1 Recommendation No. R 99(14), Committee of Ministers, Council of Europe, “On Universal Community Service Concerning New Communication and Information Services (Adopted by the Committee of Ministers on 9 September 1999).

 2 Mertus, supra note 2, n. 78.

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