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Human rights are, as we know them today, the outcome of the historic and collective fight against crude power; against the dictatorship of a few, who abuse their positions to the detriment of others. Media freedom is a crucial right that has been variously described as the cornerstone of democracy. The important question, that is often overlooked when we talk of free speech, is the question of limitation. To what extent should the law protect media freedom? When this freedom derails to the extent of curtailing the freedom of others and causing pain, should the law be expected to protect it? These questions have become very relevant in the context of the recent drawings of the Prophet Muhammad, first published in Jyllands-Posten, a Danish newspaper, last September and recently republished by a number of European and Canadian newspapers.
The cartoons have led to protests, sometimes destructive and deadly, in Europe, Africa, the Middle East and Asia. This article seeks to examine the Danish newspaper cartoons in question in relation to free speech. The article takes the view that the cartoons in question are examples of media irresponsibility and mirror a destructive trend of bad and cruel journalism. This, the article argues, is often caused by inadequate attention in regards to developing compulsory Media law courses at Journalism schools. The article will demonstrate, using decided media law cases, that the publication and republication fall short of what the law protects as freedom of speech.
I will argue that the defense of public interest, (often confused with media selfish interest) cannot provide justification for putting such cartoons in the public realm. In concluding however, this reflection criticizes the resort to self help by those aggrieved by the publication in question and points to a legitimate way of handling such issues within the framework of the European Convention on Human Rights.
Understanding Media Freedom and the place of Journalism in an open society:
Journalism has made several contributions to democratic governance and it could be argued that most of what we know about current events in the world; actions or inactions of our government, or governments abroad is sourced from the media. Journalism has brought down dictatorial and apartheid regimes. Its role can be understood in keeping with the Fourth Estate Model of the press. According to this model, the press should make governments accountable by publishing information about matters of public interest, particularly, if such information reveals abuses or crimes perpetrated by those in authority. From this perspective, investigative reporting is one of the most important contributions that the press makes to democracy. Lord Nicholls, of Great Britain identifies investigative journalism as one of the contemporary functions of the media. This function of the media is linked to the logic of checks and balances in democratic systems. It provides a valuable mechanism for monitoring the performance of democratic institutions as they are most broadly defined to include governmental bodies, and public organizations. The media is arguably, the most vibrant source of information that affects citizens’ lives in a democratic society.
The law, in recognition of the very important role of the media, has consistently sought to provide the enabling environment for the practice of “responsible journalism”. Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 10 of the European Convention on Human Rights (ECHR) are but instances. Article 19 of the UDHR provides as follows:
“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.”
The ECHR was promulgated barely two years after the UDHR, hence in the preamble to ECHR it was clearly stated that the Convention takes the UDHR into consideration. Article 10 (1) of the ECHR, in furtherance to the Article 19 of the UDHR provides as follows:
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.
It is important to observe that in the wordings of both the UDHR and ECHR, the operating word is “everyone.” Freedom of expression is a fundamental human right, which every human person, by that singular fact of being a human person, can lay claim to. This right transcends territorial jurisdictions and it is not an exclusive preserve of the press. Individuals and organizations can therefore lay claim to this provision, but the press has been more vigorous in asserting this right for obvious reason: in absence of a legally protected right to freedom of speech, the press and other forms of media would cease to exist.
Interestingly, Judges have variously acknowledged the special need for press freedom. SELISTO v. FINLAND [2004] ECHR 634 (16 November 2004), is the recent case in Europe to stress this importance. The case originated in an application (no. 56767/00) against the Republic of Finland, lodged with the European Court of Human Rights under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish journalist, Ms Seija Selistö, on 9 April 2000. The applicant alleged, in particular, that her conviction for criminal defamation, as a result of a series of articles she published about a surgeon X’s gross medical negligence, violated Article 10 of the Convention, which protects freedom of speech.
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Wilfred Mamah
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