Press Freedom – The Peoples' Right

Richard A. EdwardsILHRU. UWE Bristol.

Amidst the hubbub of press regulation with its focus on the freedom of the press and the rights of the victims it is worth remembering that a third, largely forgotten group, namely the citizenry or the public also has rights and interests at stake here. In fact the right of the public to receive information is the real reason that the freedom of the press is constitutionally guaranteed. In Midi Television (Pty) Ltd v Director of Public Prosecutions (Western Cape) [2007] ZASCA 56 the South African Supreme Court of Appeal rightly noted that:

[6] It is important to bear in mind that the constitutional promise of a free press is not one that is made for the protection of the special interests of the press. As pointed out by Anthony Lewis, in a passage that was cited by Cameron J in Holomisa v Argus Newspapers Ltd: ‘Press exceptionalism – the idea that journalism has a different and superior status in the Constitution – is not only an unconvincing but a dangerous doctrine.’ The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself. [Emphasis added]

No doubt for this very reason Article 10 ECHR guarantees, in addition to freedom of expression, that the ‘right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ The watchdog role of the press, a central tennet of the European Court’s free speech jurisprudence, is a public good not for the benefit of the press itself, but for the people. Thus in Eiðsdóttir v Iceland [2012] ECHR 46443/09 the Court noted that:

A central factor for the Court’s determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of ‘public watchdog’ in imparting information of serious public concern. [para, 65. Emphasis added]

A similar, though more vigorous, approach can be seen in the European Court’s sister court, the Inter-American Court of Human Rights. The Inter-American Court in its Advisory Opinion on the Compulsory Membership of an Association Prescribed by Law for the Practice of Journalism (OC-5/85, November 13 1985) had some important observations on this aspect of Article 13(1) of the American Convention on Human Rights, which is materially the same as Article 10(1) ECHR. The Inter-American Court concluded that “when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to “receive” information and ideas.” (para 30, emphasis added) Consequently, the guarantee of free speech has a special dual character. On the one hand it guarantees the individual right to freedom of expression, and on the other Article 13 enshrines a collective right to receive ideas, information and thoughts expressed by others. The Inter-American Court continued:

32. In its social dimension, freedom of expression is a means for the interchange of ideas and information among human beings and for mass communication. It includes the right of each person to seek to communicate his own views to others, as well as the right to receive opinions and news from others. For the average citizen it is just as important to know the opinions of others or to have access to information generally as is the very right to impart his own opinions.

33. The two dimensions mentioned (supra 30) of the right to freedom of expression must be guaranteed simultaneously. One cannot legitimately rely on the right of a society to be honestly informed in order to put in place a regime of prior censorship for the alleged purpose of eliminating information deemed to be untrue in the eyes of the censor. It is equally true that the right to impart information and ideas cannot be invoked to justify the establishment of private or public monopolies of the communications media designed to mold public opinion by giving expression to only one point of view.

34. If freedom of expression requires, in principle, that the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media, it must be recognized also that such media should, in practice, be true instruments of that freedom and not vehicles for its restriction. It is the mass media that make the exercise of freedom of expression a reality.  (Emphasis added)

The vital constitutional role of the press in serving the people is also evident in the First Amendment jurisprudence of the US Supreme Court. In the Pentagon Papers Case (New York Times Co. v. United States, 403 US 713, 717) Justice Black observed that:

The press [i]s to serve the governed, not the governors. The Government’s power to censor the press was abolished [by the First Amendment] so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people … (emphasis added)

The Cameron-Clegg-Miliband package undermines the very essence of this vital aspect of the Article 10 guarantee. The package puts the press watchdog on a lead and muzzles it. This is the view of some investigative journalists. But under the regulation it will not simply be the freedom of the press that is abridged. With its attendant chilling effects it will be the rights of us all that are curtailed. Can we be sure, for instance, that under the new regime The Daily Telegraph would, in future, expose the abuse of expenses by members of Parliament? Will the press be able to fully inform the electors about such matters? Or will the new law, as many suspect, allow the corrupt to shelter their venality from the people? The public may no longer hear the press watchdog barking. 


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