If the press is not free, if speech is not independent and untrammeled, it makes no difference under what form of government you live, you are a subject and not a citizen. – U.S. Senator William E. Borah
The Legal Environment for Media
The legal environment for media and journalists is an essential, but often-overlooked element in efforts to develop independent media. With the bulk of media assistance being spent on training and direct support of independent media, insufficient attention may be going to some of the most basic needs of journalists overseas: legal protection and sound media law. If journalists are being killed with impunity, arrested and held without charge, or prosecuted for what they report, and media outlets are being closed at the whims of autocratic governments, no efforts to improve standards or sustainability will be enough to guarantee a free press.
Even where good laws are in place, lack of enforcement can hinder the media’s ability to fulfill their role as watchdogs and sources of diverse opinion.
Media development and legal experts talk about the need to create a “legal enabling environment” for independent media. Efforts to improve legal conditions have ranged from introducing new laws designed to strengthen and diversify the media to investigations of journalist killings aimed at ending the impunity that exists in many countries. In CIMA’s survey of international media assistance, these efforts accounted for less than 10 percent of funded program work in 2006 by the big three U.S. nonprofits—ICFJ, IREX and Internews—totaling some $4 million. Other significant contributions come from the Knight Foundation, OSI, and NED, as well as pro bono work by U.S. lawyers.
Improving the legal environment presents several challenges:
- A major challenge is improving the legal environment that helps protect the physical safety of reporters and others in the news media. At least 813 journalists worldwide have been killed in direct connection to their work during the past 18 years, according to the Committee to Protect Journalists (CPJ). The number who lost their lives because of their work in 2009—at least 74 journalists and media workers—is one of the highest on record. In addition, 1,511 journalists were physically attacked or threatened, 887 arrested, and 67 kidnapped in 2007, according to Reporters Without Borders.
- Worse, it is not only violence that plagues much of the world’s new media, but also an overall climate of intimidation and harassment. Journalists in many countries must contend with arbitrary arrests, trumped-up charges, and lack of due process. As of December 1, 2009, 136 journalists were imprisoned worldwide, according to CPJ, which found that one in six of them were held without any publicly disclosed charge, many for months or years at a time and some in secret locations. A notable trend is the arrest of Internet journalists—bloggers, Web-based reporters, and online editors. They now account for more than half of the journalists jailed around the globe.
- Journalists also stand at risk of being prosecuted under criminal libel or defamation laws. In much of the world, defamation is both a civil and a criminal offense, although in most democracies, criminal libel statutes are rarely applied. Unlike civil statutes, criminal defamation laws can lead to prison sentences or suspension of journalists’ right to practice their profession. More than 90 percent of African countries have laws on criminal defamation, insult, or libel, and they are “employed on a regular basis,” according to the International PEN Center, a freedom of expression advocacy organization. Between July 2006 and November 2007, PEN recorded 67 cases of criminal defamation in Africa involving 90 writers, in 27 countries, including a number of countries that have promised to abolish such legislation. “All of these cases, without exception, involved journalists who criticized state or other powerful figures, and/or investigated or exposed corruption, or other malpractice by officials,” PEN reported.
- A peculiar category of defamation consists of so-called “insult” laws, in which writers can face prison for allegedly harming the image of political leaders or other powerful figures. Journalists can be prosecuted for such crimes as insulting the king (Thailand) or president (Egypt), defaming the “prestige of the state” (Vietnam), and insulting “Turkishness” (Turkey). In one of many examples, authorities in the Democratic Republic of Congo detained editor Patrice Booto for nine months during 2005-06 for offending the head of state and insulting the government. Booto’s real offense: questioning a large donation made by the president to a neighboring country.
- Another problem is the long-term commitment needed to tackle reform of laws and regulations. “The time frame of most funding is not conducive to enabling real legal reform,” observes IREX’s Mark Whitehouse. “If you go from how a bill becomes law, in many of these countries we’ve seen it take up to seven years. It’s not a quick process. It’s not so much money as it is attention—sustained attention.” A related issue is support from the U.S. government. “Legal reform means engagement with governments, and very often you’re competing with other U.S. foreign policy priorities,” says Whitehouse. “Media is usually pretty far down the list.”
- A variety of other laws are also used to limit or control the media, among them statutes that deal with advertising, taxes, and licensing. Government regulation of who can own and operate media—for example, laws regulating spectrum allocation or mandating extensive licensing procedures—is particularly problematic. Broadcast regulations often create opportunities for governments to restrict the media based on political decisions.
In response to these challenges, many organizations have engaged in efforts to improve the legal environment for media around the world. These efforts include (in part):
- USAID. As in most areas of American media assistance, USAID appears to be the largest funder of efforts to improve the legal environment.
- Open Society Institute. OSI and the London-based Sigrid Rausing Trust are launching an ambitious global legal defense fund for media in 2008. By pooling resources from various foundations, the fund will develop and support networks of media defense lawyers, and provide training and litigation support to media worldwide. OSI’s Justice Initiative has also done extensive work advocating for freedom of information laws.
- Knight Foundation. The Inter American Press Association’s Impunity Project, funded by the John S. and James L. Knight Foundation, seeks to end impunity for murders of journalists in the Americas by investigating their deaths. When the project began in 1995, there were almost no convictions or investigations of murdered journalists under way in the Americas. Since then, over 64 investigations have been completed and 82 individuals are in jail or have served sentences for murdering journalists, according to the Knight Foundation.
- National Endowment for Democracy. Media law-related projects have been a special focus of NED. Projects have included an institute to monitor violations of media rights in Venezuela, legal assistance to journalists in Tajikistan, and media law reform in Yemen.
- The Center for Global Communication Studies. Located at the University of Pennsylvania’s Annenberg School for Communication, CGCS has developed the Media Law Assistance Web site, which provides information, fosters dialogue, and builds networks among media law practitioners worldwide. The project is an outgrowth of a CIMA legal working group discussion.
- Internews. Internews has worked in at least 21 countries on the adoption and implementation of fair media laws.
- IREX. The State Department’s Middle East Partnership Initiative includes a media component that focuses, in part, on development of media law and regulations in the Middle East and North Africa. The program, run by IREX, backs efforts of local associations, attorneys, and reformers in the field.
- ICFJ. With funding from the McCormick Tribune Foundation, ICFJ has run a wide-ranging project on press freedom in Latin America, Medios y Libertad en las Américas, which includes a Spanish-language Web site. The project held 22 seminars and workshops in the region between 2003 and 2005 on freedom of expression.
Legal Community Contributions
- International Senior Lawyers Project. The International Senior Lawyers Project (ISLP) was launched as a nonprofit organization in New York in 2000 to utilize the skills and knowledge of volunteer American lawyers to advance democracy and protect human rights worldwide. ISLP’s pro bono work on media law has expanded with its volunteers putting in a total of 2,000 hours in 2007—the equivalent of a lawyer working full time that year. It runs a working group whose members have worked in West Africa, Macedonia, Russia, and Thailand, among other places, assessing draft media laws, and filing lawsuits on behalf of detained journalists and friend of the court briefs in defamation trials. Learn more about the working group here.
- Covington & Burling LLP. This international law firm has dedicated many hours of pro bono legal assistance in the area of media law, particularly in the Balkans under a four-year USAID program in Eastern and Central Europe during the late 1990s. The estimated value of the firm’s pro bono assistance under this program totaled more than $1 million, and resulted in the passage of significant laws affecting journalists in the region. More recently, the firm has advised the government of Rwanda, successfully heading off onerous statutes on licensing of journalists and criminalizing libel, and worked with USAID in conducting a comprehensive assessment of Jordan’s media laws.
- American Bar Association. Starting in 2003, the American Bar Association’s Rule of Law Initiative used a two-year $350,000 grant from the State Department to open a Media Support Center in Almaty, Kazakhstan. The center, later backed by another $200,000 from USAID and the British and Dutch embassies, provided legal workshops for journalists, support for media involved in litigation, and training for media law attorneys. Due to lack of funding, however, the Media Support Center closed in late 2007.