VINDICATED -- Prof. Deborah Lipstadt of Emory University celebrates outside London's High court April 11, 2000 after she won a libel case brought against her and Penguin Books, by David Irving, a controversial British historian. Irving wrote that it was impossible for the Nazis to have killed so many people in the Holocaust. Lipstadt subjected the work to serious factual criticism. (AP Photo/Adam Butler) Emory University maintains a web site on the trial.

International Media Law

Freedom of religion, speech, press and assembly are firmly established in international law through the United Nations Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Even so, every year many thousands of political dissidents and journalists are jailed, tortured and denied their fundamental rights in violation of the UN Charter, and few mechanisms exist to enforce international law.

Despite recent US alienation from the international legal system over issues concerning sovereignty, the need for international cooperation in the areas of trade, health, environment, travel, crime and telecommunications is greater than ever. Most international cooperation poses no real threat to nation-state sovereignty and, it may be argued, poses less of a threat than a lack of international cooperation.

Interdependence of nations is a 21st century fact and cooperation through international law is a necessity for future human survival. Media law is a area where serious contention threatens that broader cooperation. But the process of harmonizing world media law has barely begun. While the hardware is in place, the cultural and legal "software" to make it run smoothly is a distant dream.

We are not surprised, for instance, when a Saudi Arabian blogger serves four months in prison without charge and without any real explanation of his supposed crime. Arrests of bloggers have gone up dramatically since 2006, according to a World Information Access report.

Also increasing is the use of 3rd party courts to attack free speech. As Matthew Pollack notes in an article: Libel plaintiffs resort to British court system:

"Since 2002, Khalid Salim a Bin Mahfouz, a Saudi Arabian businessman and banker, has sued or threatened to sue for libel at least 36 times in British courts. Every media outlet or publisher he sued or threatened to sue has apologized, retracted and paid fines."

Partly in response, the state of New York passed a law entitled the Libel Terrorism Protection Act which gives American defendants protection from libel suits brought from other nations with fewer free speech protections.

The new technology that allows proximity of cultures through the international communications system has contributed to the difficulty. Cartoons run by a Danish newspaper in 2005, for example, would not have provoked outrage in the Moslem world twenty years beforehand. Recently, German newspaper Die Welt asserted that "the standards that Muslims require are overtaxing for open societies." Or, put it another way, people from free cultures are unlikely to bow to the arrogance of people like Bin Mahfouz.

What is International Law?

International law is technically defined as the "body of rules and principles of action which are binding on civilized states in their relation to one another." (Brierly, 1963). In effect, it is a group of treaties signed by nations. Quite often, in complex areas, it is more than one treaty, and becomes a "convention" that involves continuous negotiations. (See the UNICEF definition of key terms on international treaties).

While international law may be defined in a narrow sense, as being limited to the body of treaties about trade, health, travel and so on, it is also increasingly defined in a broader sense, as the duty of all nations towards each other and towrds the natural rights of all citizens.

Basis of International Law: The UN Charter

The cornerstone of international law is the United Nations Charter and the Universal Declaration of Human Rights. The section that applies to free speech and the mass media, the Charter's Article 19, states:

Article 19 - Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

United Nations member states are bound to uphold these and other rights in the Charter. Even so, there have been numerous occasions when individual nations have suppressed dissent in their own media, routinely blocked access to international media.

The United Nations does have an International Court of Justice and Human Rights, but international covenants on human rights do not provide for review of human rights cases in the court. Much of the work of the court involves international territorial disputes, although increasingly, cases of human rights related to genocide (eg Rwanda, Bosnia, in the 1990s ) are being heard and are setting legal precedents.

European Law: The EEC Convention and the Protection of Human Rights

THE GREAT FIRE WALL OF CHINA One of the glaring modern scofflaws regarding Article 19 of the UN Charter is the government of the People's Republic of China. While suppressing dissent and controling news is nothing unusual for the PRC, its attitude towards internet search engines such as Google and Yahoo has become controversial. Search engines have only been allowed to do business in China only if they cooperate in blocking anti-government sites and in identifying and locating political activists. For American firms, this activity is considered deeply disgraceful. According to an article in the London-based Financial Times, "Beijing’s internet controls ... raise deep moral issues for western democracies, whose capital markets help fund the local enterprises that make the censorship system work and whose own multinationals have tailored their operations in China to avoid upsetting the party commissars. Those issues have been highlighted ... by US congressional hearings at which Yahoo, the internet portal, has been strongly criticised for helping Chinese authorities track down local dissidents." In some cases, search engines like Yahoo and Google turned over names of Chinese dissidents, which led to their arrests.

The Convention for the Protection of Human Rights and Fundamental Freedoms of May 5, 1963 is a second major international cornerstone of free expression. The convention is binding among member states of the EEC and it is different from Article 19 in that it is enforced through the European Court of Human Rights. All EEC member nations may have their national laws challenged by any European citizien on human rights grounds. While the court tends to honor national laws, clear conflicts with human rights law have led the court to overturn some national laws in favor of international laws. The Convention reads as follows:

Article 9 – Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

World Press Freedom

One of the most important components of an openSEJ society is its freedom of political speech as expressed through the news media. Not surprsingly, freedom of the press is constantly under attack in countries where totalitarian governments are in control. In many cases journalists are killed, jailed, tortured or exiled.

Reporters without borders / Reporters sans frontieres tracks world press freedom and threats to journalists. White symbolizes a good situation (Canada, EEC), gray is satisfactory (US, Spain), pink shows noticable problems, red shows a difficult situation (Russia, Iraq), and dark red shows a very serious situation (China, Cuba, Columbia). A similiar group, the Committee to Protect Journalists, reports that 56 reporters will killed and hundreds were attacked in 2004.

Freedom House surveys broad general freedoms worldwide, including freedom of religious expression. Green is free, yellow is partly free, and purple is not free.

Often libel law is used to silence critics. For example, an article about nepotism in Singapore's government, published in the US by Bloomberg, led to a libel suit by Singapore's Senior Minister Lee Kuan Yew in Singapore courts. The Bloomberg service settled the case for over $550,000 in a widely criticized "swift capitulation."

Libel law has been surveyd for some other countries at a University of Houston web site .

Key differences: Clashes of Culture

In some instances the justifications for these violations of the UN charter have been based not on political oppression but rather on a clash of cultures. Nations that are not European in orientation have sought protection from what is called "cultural imperialism" -- the erosion of local culture with the glamorous and relentless consumerism and sexuality that pours out of Hollywood.

Initial debates over the emergence of an international media law came to a head in 1983 with the UNESCO report of the McBride Commission on the New World Information and Communication Order. but the debates were heavily influenced by the political divide between the US and Europe on the one hand and the Soviet Union and China on the other. In most instances, measures to enforce protection against cultural imperialism have also (or perhaps mainly) been used to stifle legitimate opinion and expression.

Key differences: Hate Speech and Information Intervention

Key differences: Information Intervention

This section will deal with proposals for more active "information intervention."

Bibliography

J. Brierley in The Law of Nations: An Introduction to the International Law of Peace, 6th ed. by H. Waldock (New York: Oxford University Press, 1963, 1968)

International Telecommunications Union

United Nations commission on International Law

Oxford University Programme in Comparative International Media Law