Cardozo law School Jacob burns institute for advanced legal studies Working Paper 027 December 2000 The enabling Environment For Free and Independent media Monroe E. Price&e Peter krug This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.tafabstractid=245494
Cardozo Law School Jacob Burns Institute for Advanced Legal Studies Working Paper 027 December 2000 The Enabling Environment For Free and Independent Media by Monroe E. Price & Peter Krug This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=245494
The Enabling environment For Free and Independent media Monroe E. Price &e Peter krug USAID Center for Democracy and governance Prepared by Programme in Comparative Media Law Policy Centre for Socio-Legal Studies Wolfson College, OXFORD OX2 6UD December 1. 2000
The Enabling Environment For Free and Independent Media by Monroe E. Price & Peter Krug Sponsored by USAID Center for Democracy and Governance Prepared by Programme in Comparative Media Law & Policy Centre for Socio-Legal Studies Wolfson College, OXFORD OX2 6UD December 1, 2000
Table of Contents PREFACE INTRODUCTION CHAPTER 1: LAW. MEDIA AND DEMOCRATIC INSTITUTIONS THE LINK BETWEEN FREE AND INDEPENDENT MEDIA AND DEMOCRATIC INSTITUTIONS 1.2 LIMITATIONS ON FORMAL LAW 5 3 THE IMPORTANCE OF THE ENABLING ENVIRONMENT CHAPTER 2: STRUCTURES OF THE MEDIA AND THE ENABLING ENVIRONMENT OVERVIEW 2.2 BALANCE BETWEEN PRIVATE AND PUBLIC SERVICE MEDIA 2.3 COMPETITION AMONG MEDIA 889 2.4 FOREIGN OWNERSHIP 2.5 MEDIA OWNERSHIP BY RELIGIOUS OR POLITICAL ORGANIZATIONS 2.6 VIEW POINT DOMINATION BY A SINGLE BROADCASTER OR OWNER 2.7 ACCESS AND RIGHT TO IMPART INFORMATION 2. 8 GOVERNMENT SUBSIDIES 2.9 GOVERNMENT AS A MARKET PARTICIPANT 2223444 2.10 GOVERNMENT FUNDING CHAPtER 3: RULE OF LAW 16 3.1 CLARITY AND ACCESSIBILITY 16 EGAL NORMS 3.3 ADMINISTRATIVE PROCESS: FAIRNESS. IMPARTIALITY AND OBJECTIVITY 18 4 JUDICIAL SUPPORT 3.5 CASE STUDY: THE ABSENCE OF AN ENABLING ENVIRONMENT AND THE RULE OF LAW CHAPTER 4: THE LEGAL ENVIRONMENT FOR NEWS MEDIA ACTIVITY 20 4.1 OVERVI 4.2 NEWSGATHERING 4.2. 1 ACCESS TO INFORMATION (DOCUMENTS) 4.2.2 ACCESS TO GOVERNMENT-CONTROLLED PROCEEDINGS AND INSTITUTIONS 4.2.3 PROTECTION OF CONFIDENTIAL SOURCES 4.24 LICENSING OF JOURNALISTS AND DEMOCRATIC GOVERNANCE 4.3 MEDIA CONTENT: DIRECT REGULATION 43.1 FUNDAMENTAL PROPOSITIONS 30 43.2 FORMS OF CONTENT REGULATION 4.3.3 PROTECTION OF STATE INTERESTS 4.3.4 PROTECTION OF COLLECTIVE INTERESTS 36 43.5 PROTECTION OF INDIVIDUAL INTERESTS 44 CONTENT-NEUTRAL REGULATION RISK OF MANIPULATIO The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media ii Table of Contents PREFACE 1 INTRODUCTION 2 CHAPTER 1: LAW, MEDIA, AND DEMOCRATIC INSTITUTIONS 4 1.1 THE LINK BETWEEN FREE AND INDEPENDENT MEDIA AND DEMOCRATIC INSTITUTIONS 4 1.2 LIMITATIONS ON FORMAL LAW 5 1.3 THE IMPORTANCE OF THE ENABLING ENVIRONMENT 6 CHAPTER 2: STRUCTURES OF THE MEDIA AND THE ENABLING ENVIRONMENT 8 2.1 OVERVIEW 8 2.2 BALANCE BETWEEN PRIVATE AND PUBLIC SERVICE MEDIA 8 2.3 COMPETITION AMONG MEDIA 9 2.4 FOREIGN OWNERSHIP 12 2.5 MEDIA OWNERSHIP BY RELIGIOUS OR POLITICAL ORGANIZATIONS 12 2.6 VIEWPOINT DOMINATION BY A SINGLE BROADCASTER OR OWNER 12 2.7 ACCESS AND RIGHT TO IMPART INFORMATION 13 2.8 GOVERNMENT SUBSIDIES 14 2.9 GOVERNMENT AS A MARKET PARTICIPANT 14 2.10 GOVERNMENT FUNDING 14 CHAPTER 3: RULE OF LAW 16 3.1 CLARITY AND ACCESSIBILITY 16 3.2 LEGAL NORMS 17 3.3 ADMINISTRATIVE PROCESS: FAIRNESS, IMPARTIALITY, AND OBJECTIVITY 18 3.4 JUDICIAL SUPPORT 18 3.5 CASE STUDY: THE ABSENCE OF AN ENABLING ENVIRONMENT AND THE RULE OF LAW 19 CHAPTER 4: THE LEGAL ENVIRONMENT FOR NEWS MEDIA ACTIVITY 20 4.1 OVERVIEW 20 4.2 NEWSGATHERING 21 4.2.1 ACCESS TO INFORMATION (DOCUMENTS) 22 4.2.2 ACCESS TO GOVERNMENT-CONTROLLED PROCEEDINGS AND INSTITUTIONS 25 4.2.3 PROTECTION OF CONFIDENTIAL SOURCES 28 4.2.4 LICENSING OF JOURNALISTS AND DEMOCRATIC GOVERNANCE 30 4.3 MEDIA CONTENT: DIRECT REGULATION 30 4.3.1 FUNDAMENTAL PROPOSITIONS 30 4.3.2 FORMS OF CONTENT REGULATION 32 4.3.3 PROTECTION OF STATE INTERESTS 33 4.3.4 PROTECTION OF COLLECTIVE INTERESTS 36 4.3.5 PROTECTION OF INDIVIDUAL INTERESTS 37 4.4 CONTENT-NEUTRAL REGULATION: RISK OF MANIPULATION 40
45 PROTECTION OF PROFESSIONAL ACTIVITIES OF JOURNALISTS 4.5.1 INTERNAL PRESS FREEDOM 4.5.2 PHYSICAL PROTECTION 444 CHAPTER 5: THE BROADER ENABLING ENVIRONMENT NEW TECHNOLOGY AND THE ENABLING ENVIRONMENT 5.2 ROLE OF CIVIL SOCIETY AND NGOS 5.3 EDUCATION IN THE IMPORTANCE OF RIGHTS 54 COPYRIGHT AND THE ENABLING ENVIRONMENT 5.5 BACKGROUND AND FOREGROUND FACTORS CHAPTER 6: RESOURCES AND TECHNIQUES FOR ENHANCING THE 中地s ENABLING ENVIRONMEN TECHNICAL ASSISTANCE 6.2 RESORT TO CONSTITUTIONS AND TO INTERNATIONAL INSTRUMENTS CHAPTER 7: CONCLUSION The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media iii 4.5 PROTECTION OF PROFESSIONAL ACTIVITIES OF JOURNALISTS 41 4.5.1 INTERNAL PRESS FREEDOM 41 4.5.2 PHYSICAL PROTECTION 41 CHAPTER 5: THE BROADER ENABLING ENVIRONMENT 42 5.1 NEW TECHNOLOGY AND THE ENABLING ENVIRONMENT 42 5.2 ROLE OF CIVIL SOCIETY AND NGOS 43 5.3 EDUCATION IN THE IMPORTANCE OF RIGHTS 44 5.4 COPYRIGHT AND THE ENABLING ENVIRONMENT 44 5.5 BACKGROUND AND FOREGROUND FACTORS 44 CHAPTER 6: RESOURCES AND TECHNIQUES FOR ENHANCING THE ENABLING ENVIRONMENT 46 6.1 TECHNICAL ASSISTANCE 46 6.2 RESORT TO CONSTITUTIONS AND TO INTERNATIONAL INSTRUMENTS 46 CHAPTER 7: CONCLUSION 47
reface The publication of this document represents Center for Democracy and governance, a grant the growing international support for democracy was awarded to the Nation s Institute to identify and strengthening free and independent media as the principle characteristics of a legal enablin a key element in contributing to transparent and environment for free and independent media, accountable governance morta and to prepare and disseminate a document de pression of this interest emanated from the embodying those elements June 1997 Denver G& Summit meeting where The grant was coordinated through the the formal proceedings included discussions of P Comparative Media Law and G8 support for democracy. In the following Policy(PCMLP)at the University of Ox September, a meeting of representatives of the conference was held in June 1998 to hel G8 countries was hosted by the U.S. State the studies and develop the materials for this Department to discuss in greater depth how to document. This included commissioning a support democratic development worldwide group of essays on media law reform in a wide Building on the momentum of these variety(geographical and in terms of stage of meetings, the State Department's Bureau of transition of societies, including Indonesia, Democracy, Human Rights, and Labor took the Uzbekistan, Uruguay and Poland initiative of funding a proposal submitted to the Professors Peter Krug and Monroe E Price United States Agency for International undertook preparation of this document Development(USAID), Center for Democracy Individuals who are involved in media reform in and Governance, for the preparation of a study Africa, Latin America, South East Asia, Central identifying the legal and institutional and Eastern Europe, and the post-Soviet requirements for free and independent media Republics of Central Asia reviewed the The proposal originated with a conference at the document. Among those who were most Freedom Forums Media Study Center in New instrumental in seeing the project to conclusion York co-convened by the Center for Democracy were Ann Hudock, Department of State, Gary and Governance. The conference brought Hansen and David Black, USAID Center for together donor and donee organizations involved Democracy and Governance, Stefaan Verhulst in media law reform Director of the PCMLP. Dr. Beata With funding from the State Department, Rozumilowicz and Bethany Davis, the PCMLP and under the technical management of the and Eric Johnson. Internews The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 1 Preface The publication of this document represents the growing international support for democracy and strengthening free and independent media as a key element in contributing to transparent and accountable governance. One important expression of this interest emanated from the June 1997 Denver G8 Summit meeting where the formal proceedings included discussions of G8 support for democracy. In the following September, a meeting of representatives of the G8 countries was hosted by the U.S. State Department to discuss in greater depth how to support democratic development worldwide. Building on the momentum of these meetings, the State Department's Bureau of Democracy, Human Rights, and Labor took the initiative of funding a proposal submitted to the United States Agency for International Development (USAID), Center for Democracy and Governance, for the preparation of a study identifying the legal and institutional requirements for free and independent media. The proposal originated with a conference at the Freedom Forum's Media Study Center in New York co-convened by the Center for Democracy and Governance. The conference brought together donor and donee organizations involved in media law reform. With funding from the State Department, and under the technical management of the Center for Democracy and Governance, a grant was awarded to the Nation's Institute to identify the principle characteristics of a legal enabling environment for free and independent media, and to prepare and disseminate a document embodying those elements. The grant was coordinated through the Programme in Comparative Media Law and Policy (PCMLP) at the University of Oxford. A conference was held in June 1998 to help design the studies and develop the materials for this document. This included commissioning a group of essays on media law reform in a wide variety (geographical and in terms of stage of transition) of societies, including Indonesia, Uzbekistan, Uruguay and Poland. Professors Peter Krug and Monroe E. Price undertook preparation of this document. Individuals who are involved in media reform in Africa, Latin America, South East Asia, Central and Eastern Europe, and the post-Soviet Republics of Central Asia reviewed the document. Among those who were most instrumental in seeing the project to conclusion were Ann Hudock, Department of State, Gary Hansen and David Black, USAID Center for Democracy and Governance, Stefaan Verhulst, Director of the PCMLP, Dr. Beata Rozumilowicz and Bethany Davis, the PCMLP, and Eric Johnson, Internews