Minorities and media freedom under international law

07 December 1999

Helen Darbishire¹

Introduction

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

[Article 19, Universal Declaration of Human Rights, 1948].

For the individual to be an individual, to be a unique human being with dignity and with rights and freedoms, the right to freedom of expression is an essential right. Our identities, in significant part, arise from having the right to express our ideas and opinions, and to be able to do so in the language of our choice and by means of the form of expression which we choose - to be able to communicate this information to others by the medium of our choice. When the United Nations developed the Universal Declaration of Human Rights in 1948, it stressed the importance of freedom of expression. In the preamble to the Declaration we find enumerated four rights of particular importance: "freedom of speech and belief and freedom from fear and want".

The right to freedom of speech was elaborated in Article 19 of the Universal Declaration of Human Rights, as cited above. This in turn led to Article 19 of the International Covenant on Civil and Political Rights [1966, entry into force 1976] and Article 10 of the European Convention on Human Rights [1950, entry into force 1953]. It is these two latter documents which governments sign and pledge to uphold the rights contained therein.

The same that is true for any individual is true for minority groups: to have an identity means to be able to express that identity through the medium of one's choice. However, the international instruments weigh heavily in favour of individual rights over group rights. They do nevertheless recognize language rights and the right not be discriminated against. In the European context in particular, the rights of expression of minority groups have been elaborated in subsequent treaties, notably the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages.

The rights of minority groups to freedom of expression and information, to media freedom, are still in a relatively early phase of evolution. Pertinent legal standards are still developing. New monitoring mechanisms introduced under the Framework Convention and the Charter for Minority Languages are just beginning to function. There are now, however, increased possibilities to use these new European mechanisms to defend and promote minority rights. In order to inform those wishing to use these mechanisms, this article will first examine the right to media freedom in general and then focus on the particular rights of minorities with respect to the mass media.

Media freedom

The right to expression and information through any media² is a right which belongs to all persons, including members of any minority group within any state or society. From this we can talk about a right to media freedom which all governments must respect. It is now clearly established in international law that states must allow all types of media to operate and they must permit media enterprises to be founded by private persons or groups of persons. This applies to printed media - newspapers, magazines, etc. - and also to electronic media. In 1993 the European Court of Human Rights ruled that states may not prohibit private radio or television stations from functioning. The Court decided against the Austrian government, in a case which challenged the Austrian government's broadcasting monopoly³. The Austrian government had refused to allow private radio and television stations to operate. It argued that the surest way to guarantee objectivity and diversity of opinion was through a public service broadcasting monopoly. It also argued that the Austrian market was too small to sustain sufficient number of stations to avoid regroupings and the development of "private monopolies". The Court stated that of all the means of achieving a plurality of views in the broadcast media, a public monopoly was the most restrictive of freedom of expression. The Court rejected the economic argument, noting that several European countries of comparable size to Austria have achieved a coexistence of private and public stations, accompanied by measures which prevent private monopolies.

Licencing of electronic media

A distinction is still made in international law between printed media and electronic media. Governments are expected to allow newspapers and magazines to be published without restrictions. There can be no requirement that printed media have a licence in order to publish. The state may require some registration - for administrative purposes only - but this must be automatic and cannot be used to deny to media enterprises the right to publish. If any of these media break the law - for example by publishing defamatory articles - they can be punished for the particular infringement under relevant general legislation, but they cannot be banned from publishing in the future as that would be punishing all future expression, which would be disproportionate.

Governments may, however, require radio and television broadcasters to have licences in order to operate. The rationale for this is that the frequency spectrum is limited and that if government are to meet their obligation to ensure plurality in the media, they need to determine who broadcasts and may prefer to allocate licences to stations which propose to carry a variety of programming of a public service nature and/or which addresses the interests of different sectors of society, such as minority groups.

Technology is changing rapidly. The development of cable and satellite broadcasting has vastly increased the possible number of radio and television channels in any one country. With the Internet promising to bring broadcasting and cinema into people's homes in the near future, the number of channels available to any one viewer becomes almost limitless. It is therefore increasingly hard to sustain the argument that radio or television are different from newspapers and that states have the right to control the issuing of licences. Nevertheless, the current European standard is that, with respect to terrestrial broadcasting, governments may still issue licences to broadcasters. They must, however, ensure that the mechanism by which the licences are awarded is fair, non-discriminatory and commercially reasonable, for example through open competition administered by an independent broadcasting council.

Government obligations

Governments have a dual obligation: a duty to refrain from undue interference with the right to media freedom and a duty to promote this right for its citizens. The obligation to promote media freedom requires governments to ensure that the legal, logistical and economic environment in which media operate is optimal for media freedom and pluralism. As noted by the European Court on numerous occasions, the state is the "ultimate guarantor" of the principle of pluralism, necessary if the media are to be successful in accomplishing their public tasks. In addition, governments have an obligation to prevent private interest groups from interfering with media freedom and preventing a diversity of media from flourishing.

As noted above, governments may require private radio and television stations to have licences to operate but they must not interfere with the editorial freedom of these stations. Governments may also operate state-funded electronic media - so long as these fulfil a public service role - but in the established democracies it is not normal practice for governments to own newspapers. Governments publish many periodicals, such as for example the gazette in which new legislation is announced, but typically do not compete in the mass media market with private daily or weekly newspapers.

Private media obligations

As can be seen from Boxes 1 and 2, the international standards establishing the right to freedom of expression and information also allow governments to place some narrow restrictions on that right, in the interest of protecting privacy, personal reputations or national security. These restrictions are, however, subject to strict tests: the restrictions must be clearly defined in law and must be necessary in a democratic society. If there is a public interest in having the information brought into the public domain - for example because it exposes some wrongdoing by the government or a threat of damage to the environment - then the government cannot justify placing restrictions on the information.

Apart from these narrow restrictions, private media have a wide freedom to publish any news, information, comment or opinions they choose. This editorial independence is paramount if real media freedom is to exist within a society. Questions of the truth of opinions, of balance and of fairness, as well as questions of what is in good taste, are for the journalists and editors to decide according to their journalistic ethics and professional standards. As the European Court of Human Rights has stated:

Freedom of expression constitutes one of the essential foundations of such [democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10(2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society⁴".

Obligations on public media (state funded radio and television)

Publicly-funded broadcasters, on the other hand, have much stronger obligations. The duties of public service broadcasting include the requirement to inform the public about matters of public interest, to provide balanced and objective news coverage, and to offer a right of reply to inaccurate statements. Public service broadcasters should provide comprehensive, varied and balanced television and radio programmes for the entire public, including ethnic, national, religious and other minority groups.

It is not possible to argue that particular individuals or groups have a right of access to public media, but it is clearly established that these media must not discriminate in the access or coverage which they provide. For example, the European Commission [at the time, the body which evaluated complaints before they were heard by the European Court of Human Rights] has ruled that although Article 10 of the Convention does not grant a general right of access to the broadcast media, a political party would be entitled to broad-casting time if other parties were given such time:

It is evident that the freedom to "impart information and ideas" included in the right to freedom of expression under Article 10 of the Convention, cannot be taken to include a general and unfettered right for any private citizen or organisation to have access to broadcasting time on radio or television in order to forward its opinion. On the other hand, the Commission considers that the denial of broadcasting time to one or more specific groups or persons may, in particular circumstances, raise an issue under Article 10 alone or in conjunction with Article 14 of the Convention. Such an issue would, in principle, arise for instance if one political party was excluded from broadcasting facilities at election time while other parties were given broadcasting time⁵. The reasoning of the decision indicates that minority groups in a society should benefit from the same rights of non-discriminatory access as do political parties.

Minority access

The right of minority groups to enjoy the general right to media freedom is reinforced by the specific obligations of governments towards minorities. These obligations include that governments should give effect to the right of persons belonging to minorities to enjoy their own culture⁶, to have equal access to public property and public services, and to enjoy, on the basis of equality, the rights to education, training and participation in cultural activities⁷. The obligation is further strengthened by the general duty of governments to promote tolerance and broadmindedness.

One authoritative interpretation of international standards pertaining to minority rights is a 1993 report of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities which identifies various measures that governments should take, including the following:

Members of different groups should enjoy the right to participate, on the basis of their own culture and language, in the cultural life of the community, to produce and enjoy arts and science, to protect their cultural heritage and traditions, to own their own media and other means of communication and to have access on the basis of equality to State-owned or publicly controlled media⁸. [Emphasis added]

The principles outlined above apply to all minorities. Indeed, in many ways, every individual in a society is likely to be a member of one or more minorities - political, sexual, social, economic, etc. There is, however, a particular obligation with respect to national minorities - minorities distinguished by ethnic or national origin - and is even stronger where the national minority has lived within the territory of the state historically. Equally, international law often focuses on the rights of linguistic minorities within any particular territory. As will be seen from the next section, the rights to media access of these groups is being defined with ever greater precision in international law.

The new treaties on minority rights

Since 1998, two new European treaties are in force which significantly expand the rights of minorities with regard to the media as well as in many other respects. These are the Framework Convention for the Protection of National Minorities [1995, entry into force 1998]⁹ and the European Charter for Regional or Minority Languages [1992, entry into force 1998]¹⁰. These two treaties have different origins but are complementary in their aims and in substance, particularly when it comes to questions of freedom of expression and media freedom.

According to Elin Haf Gruffydd Jones, writing in an official Council of Europe publication, the objective of the media provisions of these treaties is that the members of the minority group are the "producers of their own media, and reflect the diversity of their social reality, rather than being merely the objects of media, having somebody else's view of them reproduced and thrown back at them. This, of course, is the cause of caricatures and stereotypes, which are at best frivolous and usually contribute to perpetuating misunderstanding and hostility between communities¹¹."

Media rights under the Framework Convention

The Framework Convention for the Protection of National Minorities sets forth at Article 9 the obligations on governments to ensure that all members of minority groups enjoy the right to freedom of expression and information. Many states already permit and often subsidize minority language newspapers and periodicals. In modern Europe, however, it is increasingly important for minorities to have access to electronic media and the Framework Convention encourages the move towards such access.

One significant step forward in international standards is that the Framework Convention creates positive obligations on states to promote the access of minorities to the broadcast media as well as printed media (see Article 9, paragraphs 3 and 4). This then goes beyond negative obligations concerning media freedom, for example the obligation not to "hinder the creation and use of printed media by persons belonging to national minorities".

The Framework Convention is also important in that it sets out rights for minorities not distinguished linguistically from the majority. This affects, for example, those Romani groups who wish to broadcast in the language of the majority, such as Roma in Hungary, where the only language common to all Romani groups is Hungarian.

One drawback of the Framework Convention, however, is that it is up to states to define which are their national minorities. For example, in Slovenia, broadcasting legislation gives rights to national minorities and therefore to the Italian and Hungarian minorities which are recognized by the Constitution, but not to Roma, who are not identified as a national minority by the Constitution.

Many states already permit and often subsidize minority language newspapers and periodicals, but in modern Europe it is increasingly important for minorities to have access to electronic media. There is a trend in Europe to facilitate electronic media access for minorities and the Framework Convention encourages moves in that direction. So, for example, the Czech Government reporting under the Framework Convention notes that Czech Radio has independent national minority departments for Polish, Slovak, Romany and German and also broadcasts programmes for members of the Hungarian, Polish, Ukrainian, Croatian, Vietnamese and Jewish communities. The Czech Report recognizes, however, that the situation with regard to minorities and the media is not ideal. For example, German and Slovak minority representatives have criticized Czech television for not paying adequate attention to issues concerning national minorities.

Media rights under the Charter

The European Charter for Regional or Minority Languages address the rights of different linguistic communities. Article 1 defines regional and minority languages, including languages linked to a particular geographic area and "non-territorial" languages such as Romani and Yiddish. The recognition of regional languages could prove particularly important for those Romani communities which in the past have often suffered from not being defined as national minorities, such as the Slovene example mentioned above.

The European Charter for Regional or Minority Languages is much more specific than the Framework Convention on the rights of access to electronic media. The Charter forces the hand of governments, requiring them to define exactly which kinds of access to the minority groups will have. It presents in Article 11 a shopping list of options from which states must chose and must specify which provision will apply to which language group and over which territory.

Finland, for example, has under Article 11 paragraph 1 of the Charter made various choices with respect to the Swedish language including providing programming on public service media (option a.iii), facilitating the creation of a radio station (option b.i) and supporting the broadcasting of television programmes in Swedish (option c.ii). For the Sami language there is support for production of audio-visual works (paragraph 1.d) and legislation introduced on 1 January 1999 will expand public service programmes to the Romani language and to sign language¹².

The Norwegian authorities have opted for the same solutions for its Sami population as the Finns have for the Swedish minority, so a.iii, b.i. and c.ii. With regard to the obligation under Paragraph 1 subparagraph f, the Norwegian government notes in its first report to the Council of Europe that there is currently no training for journalists in the Sami language but that the Sami college is considering establishing a two-year programme in journalism and media.

Not all states, however, opt to guarantee to minority groups the right to own and operate private media. For example in Croatia this problem has two sources: one is that not all minority groups living on Croatian territory have been recognized as national minorities¹³; and, second, the telecommunications law does not require specific consideration of programming for minorities to be part of the conditions upon which licences were awarded. There are 110 private radio stations and ten private televisions, but none of them were granted licences to broadcast in minority languages. Indeed, specific permission is required from the Council for Telecommunications to broadcast programmes in languages other than Croatian. The Croatian authorities note that in only one case has the holder of a radio licence asked for such permission, and this was a request for daily broadcasting in the Czech language for Czech tourists during the tourist season, which was approved.

In other countries, the authorities argue that it is sufficient to allow those wishing to operate minority stations to compete on a level footing with all other applicants. Under Danish law representatives of minorities may apply for local radio and television licences and also may broadcast via satellite or cable in the same way as all other citizens. The Danish authorities argue that, in addition to the broadcasting by the public radio and television in minority languages such as German, this provides sufficient opportunity for all minorities to have access to the broadcast media.

Similarly, in Macedonia - which has perhaps the largest per-capita number of radio and television stations in Europe (over 80 radio and over 40 television stations for a population of two million) - there is no specific guarantee in the broadcasting legislation that minority language media will receive licences. Macedonia does have various minority stations, and is the only country in the region to have private Romani television stations, of which there are two.

However, in the future, as Macedonia's harsh economic environment reduces the number of broadcast media, the government authorities may have to consider what guarantees or support can be given to ensure the survival of minority electronic media.

The flexibility of the Charter means that different solutions can be found according to the size and needs of particular communities. It is not, however, for the government alone to decide: Article 7.4 of the Charter requires states to consult with the minority groups:

In determining their policy with regard to regional or minority languages, the Parties shall take into consideration the needs and wishes expressed by the groups which use such languages. The different linguistic groups are encouraged by the treaty to establish representative bodies to advise the authorities and to facilitate the process of reaching an agreement on the way in which the treaty will be implemented. For example, one group may regard a radio programme on national public service radio to be sufficient, whereas another group may feel that a dedicated television station broadcasting in the region where it is dominant is an appropriate solution.

Monitoring mechanisms for the Framework Convention and the Charter

States which have signed the Framework Convention or the Charter are required after one year to submit a report on the compliance of national law and practice with the provisions of the treaty. These reports are submitted to the Secretary General of the Council of Europe and are evaluated by committees of experts. The evaluation reports are transmitted to the Committee of Ministers of the Council of Europe, the ultimate body for monitoring compliance with Council of Europe treaties. Reports under the Framework Convention have only recently been submitted - and therefore made available to the public - by a first group of states: Croatia, Cyprus, the Czech Republic, Denmark, Finland, Hungary, Italy, Liechtenstein, Malta, San Marino, Romania, Slovakia and United Kingdom.

Under the Charter, further periodic reports must be submitted every three years; under the Framework Convention the Secretary General of the Council of Europe may require further reports on the implementation of the Convention from time to time upon request of the Committee of Ministers. In addition, groups of experts will from time to time visit the member countries to gather first hand information about the implementation of the treaties. So, for example, following the report from Croatia on the Charter during 1999, a mission to Croatia to examine compliance was scheduled for early November 1999.

It is important to note that the states' reports must be public documents. The reports should be readily available from a public body such as the Ministry of the Interior or the Ministry of Foreign Affairs. The public availability of the documents permits the representatives of the relevant minority groups to comment on the states' evaluation of the situation in their country. NGOs and others representing minority groups are encouraged by the Council of Europe to submit comments upon the states reports to the committees of experts which oversee the implementation of these treaties. So, for example, one Croatian NGO submitted comments on the Croatian state report and this information will inform the mission of experts to the country. The ultimate effectiveness of these treaties will no doubt depend in significant part on the critical evaluation of states' reports by independent organizations, as well as on the work done by these groups to raise awareness of governments' obligations under these treaties. Further information on the monitoring mechanisms for both the Framework Convention and the Charter can be obtained by contacting the staff of the Council of Europe working to support the expert committees. The telephone number of the Council of Europe in Strasbourg is + 33 3 88 41 2000 and the Internet website is located at www.coe.int.

Conclusion

The right to media freedom is extensively elaborated under international law and democratic standards. In Europe, with the additional mechanisms established under the Council of Europe to promote human rights and democracy, the duty of states to respect and to protect the plurality, diversity and independence of the media is a particularly strong and important obligation.

Equally, the right of individuals to freedom of expression and information is fundamental and must be granted to all persons on a non-discriminatory basis, including to members of minority groups. That said, the right to media freedom for members of minority groups collectively is not recognized as a right. However, international standards, particularly the European treaties designed to promote national and linguistic minorities, do in effect grant this right to groups of individuals. This apparent "right of minority access to media" is a right which is still evolving both in law and in practice. States have many options for meeting their obligations and the right is not yet fully enjoyed in many states. There are, however, increasing opportunities at the level of national and international law to ensure that a wide range of minority voices and languages are heard through the media.

Ašmet Elezovski of the Macedonian Romani organisation Drom adds comment on the situation of Romani media in Macedonia. His observations were originally presented at the "International Conference for Managers and Editors of Roma Media" held in Ohrid, Macedonia, February 4-7, 1999.

Roma in former Yugoslavia hardly had any chance to spread information among themselves via the media, and they had few opportunities to have their own Romani programmes, radio or television stations. With the disintegration of former Yugoslavia, the independence of Macedonia, and the development of democratic processes, since 1991 information distribution in the electronic media has begun developing in modern democratic ways as well. The first Romani political group, the Party for the Total Emancipation of Roma (Partija na celosna emancipacija na Romite na Makedonija - PCERM) raised the question of information distribution among Roma and Roma media, as this political group realised the influence that information can have in solving cultural, social and political problems.

In the cities of Skopje, Kumanovo, and Tetovo radio programmes in Romani were launched, and finally in 1993 Roma got their own radio stations broadcasting 24 hours a day in Skopje, Kumanovo, Tetovo, and L tip. Later came the first private Romani television stations: BTR Nacional and L utel in Skopje. Through the programmes of these two TV stations, Roma receive information on everything that happens in their cities, country and all over the world. Romani media in Macedonia play an important part in preserving the identity, culture history and customs of Roma. However, with the adoption of the Act on Radio Transmission in 1997, most Romani media faced a situation in which their survival became threatened. According to the new legal regulations, the only way for Romani media to stay on the air was to provide financial means for modern technical equipment and hiring professional staff, conditions beyond the means of the owners.

If one takes a look at the legal provisions, it is evident that national minorities in Macedonia enjoy the freedom to form their own media operating in their mother tongue. But in reality, exercising this right is very difficult. Roma themselves emerged as the main proponents of Romani media as a means of raising Romani consciousness, and providing authentic support in the process. Still, if we compare the representation of other minority groups in Macedonia, such as Albanians or Turks, in everyday programmes on the state-run Macedonian Television (MTV), it can be concluded that Roma do not see their issues represented in the media to the same extent as other minorities. What is the reason for this? Can we blame the weakness of Romani media on the inertia of Roma and Roma organisations, or is it a matter of unfair regulations on the extent of representation of Roma and giving them equal time as compared to the time given to other minorities?

There are poor links between Romani journalists and the wider society. Romani journalists working in the Romani media have direct access to decision-making in the course of their work, and direct access to the Romani public. The situation of Romani journalists working in non-Romani media is different. In the first place, many editors think differently than we do and do not take a Romani perspective into account. Secondly, there is a lack of transparency in decision-making: most decisions on editorial and other policies in the non-Romani media are taken behind closed doors. Third, the treatment we experience from non-Roma working in the media is similar to the treatment we experience from the wider society. Finally, there is a lack of professional Romani journalists and our inexperience hinders our work. On the whole, television and radio stations are happy to brag that they have an hour or two devoted to Romani programming, but they couldn't care less what goes on during broadcasting time.

Within the Romani media, on the other hand, there is a problem of a lack of professionalism, as well as of the overrepresentation of non-Roma, which indicates a huge need for education. Roma not only need cultural education, as at the moment the political education of Roma is more necessary than ever. What is needed are projects, seminars, organised and financially supported by the government of Macedonia, media houses, foreign organisations working on media development in Macedonia and other European countries.

Romani journalism should not exist only in theory but in practice, and it should contribute to an improved status of Roma, a better place in society for Roma, advancement in the educational sphere, and changes in public opinion about Roma. These are all conditions for tolerance, peace and mutual coexistence. Our main task now is to create an atmosphere in which everyone should feel a citizen first, and then a person of colour and member of a national group. Romani media should be a bridge for the integration of Roma in all spheres of life.

Endnotes:

1. Helein Darbishire is Media Law Program Manager for the Open Society Institute - Europe, based in Budapest.
2. The word "media" is specifically mentioned in Article 19 of the Universal Declaration of Human Rights and Article 19 of the ICCPR. It is not mentioned in Article 10 of the European Convention on Human Rights but is clearly implied (particularly from the wording of paragraph 2 which permits licencing of cinema and broadcasting enterprises), and the jurisprudence of the European Court of Human Rights supports this interpretation.
3. Informatinsverein Lentia and others v. Austria (36/1992/381/455-459), judgment of 24 November 1993.
4. Handyside v. United Kingdom, para. 49., 7 December 1976 Series A no. 24; See also The Sunday Times v. United Kingdom, para. 64., 26 April 1979, Series A No. 30.
5. X and the Association of Z v. the United Kingdom, European Commission, Admissibility Decision of 12 July 1971, App. No. 4515/70, 38 Collected Decisions 86 (1971); Euro Yearbook of Human Rights 14, 538.
6. See ICCPR, Article 27. Also see Articles 1 and 4(2) of the UN Declaration of Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by consensus by the General Assembly in 1993.
7. Article 5 of International Convention on the Elimination of All Forms of Racial Discrimination.
8. Report entitled Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities. UN Doc. E/CN/4/Sub.2/199/34, 10 Aug 1993.
9. The Framework Convention for the Protection of National Minorities now has 37 signatories, being all Council of Europe members except Andorra, Belgium, France and Georgia, plus Armenia.
10. The European Charter for Regional or Minority Languages currently has 20 signatories. The list of signatories is available on the Council of Europe Internet website at http://www.coe.int.
11. Elin Haf Gruffydd Jones, in Conference on the European Charter for Regional or Minority Languages, Council of Europe Publishing 1998, page 35.
12. Sign language is the means of communication used by deaf persons. Sign language is normally considered a tool of communication, and the decision to treat it as a language is an interesting development. The Council of Europe reports that although the Charter did not anticipate inclusion of those who use sign language, other countries such as the UK are also considering including it on their list of minority languages.
13. The Preamble of the Constitution defines as minorities "Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ruthenians, Ukrainians and others who are citizens of the Republic of Croatia".