GR AP PLI N G WI TH ‘ BEST P RA CTI C ES ’ I N T H E REGUL ATI O N O F M EDI A & SPEECH

DR. M ATT J. D UF FYASSI STAN T P ROF ESSOR

DEPART M EN T OF C OM M UN I CATI O NKENN ESAW STATE UN I VERSI TY

KENN ESAW, GEO RGI A , U SA

M EDI A TR EN DS CO NF ER ENCE WEB STER U NI VER SI TY / / V I EN NA , A USTR I A

SEP T. 1 1 , 2015

Global norms for media law

Do global norms exist?

Yes, debatable. I would argue yes. See, for instance, health codes.

But, how to draft them for communication?Regional courts

Inter-American Court of Human Rights European Court of Human Rights African Court of Human and Peoples’ Rights

Global bodies United Nations OSCE, European Parliament, African Commission NGOs such as Amnesty International, HRW, FH, RWB

Treaties: ICCPR, UN declaration of human rights

5 broad categories of media regulations

1) Defamation: Injury to reputation2) Insult laws: Regulating offense3) Public order & national security: Providing safety4) Licensing of journalists: Professionalization?5) False news laws: Try to prevent untrue journalism

Some, not all, fit within Article 19 of ICCPR:(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order, or of public health or morals.

Defamation – 3 ‘best practices’

1) Civil lawsuits rather than criminal charges1) African Court of Human and Peoples’ Rights just

overturned a criminal defamation case in Burkina-Faso2) Truth must be a defense for defamation

1) Otherwise, we allow people to protect good reputations that they do not deserve.

3) Public figures must withstand more scrutiny than private figures ‘Actual Malice’ – forgives journalists for errors

that were not intentional Not specifically embraced worldwide. Most courts expect public figures to withstand more

scrutiny

Public order & national security

Tricky: Without public safety all other guarantees are meaningless

Laws, legal rulings attempt to give fullest protections for expressions of political speech

Anti-terrorism laws increasingly target speech Few rulings but certainly a concern

No consensus on hate speech (public order issue) Some focus on calls for “imminent lawless actions”

while others target speech that denigrates a groupPublic morals also have no “global norm.”

Insult laws

Most courts, observers see them as vague, abused by powerful, incompatible with free expression ECHR ruled against ‘insulting the ruler’ case IACHR also ruled against charge African Commission called for complete ban on insult laws

‘Fighting words’ doctrine in US does state that some speech is unprotected if designed to provoke violent response need to research more

Agreement that public officials should not have power to use insult laws against speakers

Licensing of journalists

Governments that can license journalists can have unfair pressure on robust journalism

Journalists may self-censor if worrying about losing ability to work.

Both African Court and Inter-American Court have ruled against licensing of journalists.

Lies outside of ICCPR guidelines

False news laws

Noble goal – who wouldn’t want truthful reporting?

Problem arises when government officials determine what news is untruthful.

Many courts & bodies have argued that “false news” laws simply incompatible with free expression

Also lies outside ICCPR guidelines

The End!

Dr. Matt J. DuffyTeacher of media law &

journalism at Kennesaw State

Find slides and published papers on: www.mattjduffy.com

Email: mattjduffy@gmail.com

@mattjduffy