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Background:

Considering the media reform bills package through a human rights lens

20 March 2013

What are the relevant human rights issues?

The Commission notes that the bills engage human rights, including:

• ICCPR article 14(1) – right to a fair and public hearing
• ICCPR article 17 – freedom from arbitrary or unlawful interference with privacy
• ICCPR article 19(2) – right to freedom of opinion and expression
• ICCPR article 25 – right to take part in public affairs (including the need for a free press)

What are commonly raised issues relating to media regulation and human rights?

Some of the issues relating to media regulation that have been identified in international human rights law include the following:

• Individuals have a right to express views and receive information as part of their right to freedom of expression.
• Individuals have a right to access a diverse range of information and ideas, and governments are encouraged to promote an independent and diverse media. This issue has been interpreted as supporting the establishment of systems for licensing broadcasters which helps ensure diversity and limit media concentration. The UN Human Rights Committee has noted, for example, that governments “should take appropriate action... to prevent undue media dominance or concentration by privately controlled media groups in monopolistic situations that may be harmful to a diversity of sources and views”. (UN Human Rights Committee, General Comment 34, para 40)^[1]
• However, in doing so, governments must avoid imposing onerous licensing conditions and fees on the broadcast media, including on community and commercial stations. The criteria for the application of such conditions and licence fees should be reasonable and objective, clear, transparent and non-discriminatory.
• Governments should also respect that the right of freedom of expression includes recognition of a limited journalistic privilege not to disclose information sources
• Governments have a positive obligation to ensure independence and editorial freedom of public broadcasting services
• Laws restricting freedom of expression should not grant executive or administrative authorities excessively broad discretionary powers to limit expression: the law must be clear and precise.

What conditions must be in place to justify restrictions on the right to freedom of expression (article 19(3))

There is a three-pronged test for acceptable limitations on freedom of expression:

1. Limitations must be in law (including laws such as parliamentary privilege and contempt of court)

2. Limitations must be for a legitimate purpose (the exclusive list of (categories of) legitimate purposes is in article 19 and includes respect for the rights of others, eg to privacy, and public order, national security, public health or morals)

3. Limiting measures must be necessary (including proportionality test); they must be directly related to the specific need on which they are predicated.^[2]

^[1] http://www2.ohchr.org/english/bodies/hrc/comments.htm.

^[2] See Communication No. 1022/2001, Velichkin v. Belarus, Views adopted on 20 October 2005; and the Human Rights Committee’s General Comment No. 22, Official Records of the General Assembly, Fortyeighth
Session, Supplement No. 40 (A/48/40), annex VI.