 |
 |
 |
 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
 |
 |
|
 |
|
||||
|
E
s s a y b y G r e g o r i o B a d e n i
A
new stage in the history of humanity is upon us ? the age of social
communication. It has no frontiers and is not subject to the power
of the state or of sectarian interests. It rejects ideologies and
preconceived, static notions of social life. This period coincides
with the formation of a supranational society in which growing deregulation
of the news media excludes any government interference intended
to limit its content. All
of this brings us a daily challenge: To tolerate the exercise ?
even an excess ? of freedom of the press: a freedom which cannot
be outlawed by legislation but only by the spontaneous reproach
of an educated and responsible society. Nevertheless,
the complete compilation and analysis conducted by the Inter American
Press Association of the legal standards that regulate freedom of
the press in 24 nations of the Americas reveal how far we are from
truly enjoying ? on the eve of the 21st century ? the invaluable
benefits tendered by freedom of thought and expression. Freedom
of the press, as a synonym for freedom of expression manifested
through the technical means of mass communications, is part of the
strategic freedoms that are indispensable to preserve and consolidate
the other freedoms that together conform the framework for human
dignity. The
emergence of pluralism led to the conclusion that power and its
exercise enjoy legitimacy when preceded by the consent of the governed,
whose reasonable expectations, as voiced by public opinion groups,
are met. Since then, a new social idea began to take dominant shape.
According to this idea, the survival of a political system is subject
to a balance of society?s requirements as transmitted by the press. If
people are denied access to information, if they are not allowed
to express their thoughts, if they are deprived of their right to
voice opinions and hear those of others, then the manifestation
of their ideas will not be free. And without freedom of expression
there can be no democratic coexistence, not as a form of government
nor as a lifestyle. Progress
achieved by the news media during the 18th and 19th centuries allowed
the press to broaden news content beyond a journalism of opinion
focused on political topics. It expanded to include coverage and
commentary about the most varied subjects. Cost-cutting brought
on by the development of the news business plus growing public literacy
opened access to the press for a society increasingly educated and
demanding. The rise of this popular press was the product of an
intense demand for news that had to be met with innovative editorial
and composition approaches. Concurrently, the technology revolution
that exploded on the eve of the 20th century and over the next decades
projected freedom of the press to a dimension so significant that
a reversal becomes unimaginable. In
theory, everyone is openly in favor of freedom of the press. But
in practice, many impose arbitrary limits on that freedom. Voices
are raised against the news media, accusing it of disseminating
immorality, lies, violence, pornography, delinquency and every other
negative aspect of human nature. However, it has never been proved
that such vices are the consequence of freedom of the press. We
need only recall the history of humanity from its earliest beginnings
to confirm that all those weaknesses have been a part of society
without any help from the news media. The
voices of protest proclaim: Long live freedom of the press, but
death to whomever does not think like me! Such a mentality is understandable
in an authoritarian system. It is the extension of authoritarian
conduct that presumes to impose on the media rules of what and how
news should be reported. This pathological attitude reflects a dogmatic
and irrational intolerance that collides openly with pluralism as
a dominant social idea. The
social reasons usually cited to justify restrictions on the press
spring from an alteration of the axiological scale they hope to
insert in the political system. It cloaks autocratic and intolerant
concepts that would herd people and suppress freedom of the press
as a first step toward assaulting with impunity the remaining freedoms
of the people. The
IAPA compilation flags authoritarian remnants in the legislation
of the countries of the Americas. For example, laws specifically
intended to regulate press activities. Acceptance of such rules
oftentimes comes in the guise of sheltering the press when, in fact,
they mask policies that restrict the work of the press. The press
does not need protective laws; it needs government conduct which
refrains from erecting barriers. It has been well said that the
best press law is the one never enacted. Similarly, rules to regulate
radio and television broadcasts are acceptable only when limited
to technical matters, but not if they infringe on content. Another
of the autocratic obstacles is to require that journalists obtain
some prior authorization in order to work, such as signing up for
special registers, obtaining degrees or holding membership in a
designated association. All of this flies in the face of constitutional
democracy which provides that practicing journalism ? seeking, getting
and reporting news ? is essentially free. It is worth noting that
the Inter American Court of Human Rights, in its advisory opinion
5/85, ruled that: ?Compulsory membership for journalists, to the
degree that it limits the access of any person to the full use of
the news media as a vehicle for expression or to transmit information,
is incompatible with Art. 13 of the American Convention on Human
Rights.? Many
countries restrict or forbid the publication of electoral information
on the eve of or during elections. The reasoning is rooted in a
paternalistic need to tutor the citizenry, who presumably lack the
education and political culture to act independently if provided
with the results of polls. However, there is a clear contradiction
here because, if the people?s will is supreme in the election, then
they are entitled to reasonable interest in the results of surveys
and political opinions. Political leadership need not fear the popular
will nor doubt the civic capacity of the people. The
right to reply or rectification, which appears in the law books
of several Latin American nations, is an act of censorship that
harms the work of an independent press and promotes self-censorship.
A sanction imposed on print periodicals, television and radio, it
impairs freedom of the press, editorial policy and the right to
property. To force a medium to publish something against its will
is tantamount to banning it from publishing certain facts and opinions. Whoever
assumes public office ? executive, legislative or judicial ? in
a democracy becomes fair game for the comments and criticisms of
the people they serve. At stake is a risk that goes to the heart
of pluralism ? a risk that does not carry the privilege of defense
by legal punishment of the offenders. That privilege, embodied in
the legal concept of contempt, lingers in some laws of the Americas
as a secular vestige of authoritarian cultures. Offenses aimed at
public servants should merit legal treatment no different from that
accorded any common citizen. The
journalist?s right to professional secrecy often is not recognized.
It is not acknowledged that gathering information carries the condition,
not uncommon, that the identity of the source be kept confidential.
This is a basis rule of journalism that is linked to the reporter?s
credibility among his sources, based on the promise of protected
identity. Keeping that secret helps in the process of gathering
and delivering news. The professional secret is at the core of investigative
reporting, which in turn sheds light on criminal activities. Among
other limitations imposed on the press: The creation of special
courts to try illegal acts committed through the news media; the
designation of ?offenses of the press? when, if fact, because the
press is only a conduit, there can only be ?offenses via the press;?
the overvaluation of the rights to honor, privacy and self-image
at the expense of the right of the people to receive news about
its institutions and other matters of public interest; barriers
levied to prevent access to official sources of information and,
especially, legal proceedings; the imposition of legal rules of
conduct or ethical codes for journalists; restrictions on advertising;
regulations that hamper the distribution and marketing of dailies,
magazines, books and other printed matter. These
restraints have been cut back in recent years in some American countries,
not out of the kindness of leaders in government. Rather, the change
has come at the request of the press and of citizens petitioning
their right to information. This development suggests the prospect
of an optimistic panorama as long as there is firm determination
to overcome the obstacles. Freedom
does not take shape through will power or acts of magic; freedom
is spawned by the actions of men and women. Consequently, without
firmness and commitment to defend freedom of the press, even though
it may be recognized by the law, it will remain no more than a simple
pronouncement. The formal existence of democracy in no way guarantees
freedom of the press. It is necessary to fight for it every moment
and every inch of the way. The history of humanity could be defined
as a permanent struggle for freedom. In
light of this experience, there is no doubt that regulation of the
press serves the livelihood of totalitarianism and curtails pluralistic
expression and human creativity which, despite all its flaws, permit
human progress. During
recent decades a steady tendency has prevailed internationally to
deregulate freedom of the press. It is recognized that without that
freedom a democratic system cannot function; that all restrictions
or regulations on the right of expression harm the right to inform
and to have information; as a result, also harmed is the form of
the political system. It
is true that there are no absolute freedoms, even of the press.
Determining the limits to freedom clashes with problems that are
difficult to overcome under a democratic constitution. Experience
teaches that punishing the press has been a favorite method for
rulers to suppress criticism, muzzle discussion of public or institutional
subjects and block the evolution of new cultural and political concepts.
The strategic nature of the press does not allow the use of rules
against it; instead it needs a wide margin of freedom. Its bounty
and flaws are determined by the degree of democratic culture of
the people which, as it develops the maturity needed to elect its
rulers so too can it condemn abuses against the news media.
|
questions
or comments? | |
