THE right to information and media freedom are critical components of freedom of expression. Freedom of expression, as defined by Article 19 of the Universal Declaration of Human Rights, is the “right to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
guest column: Patience Zirima
The Declaration of Principles on Freedom of Expression in Africa also states that freedom of expression is a “fundamental and inalienable human right and an indispensable component of democracy”.
The right of access to information is linked to freedom of expression because for the ideas we express to be of value, we need access to verifiable information by public and private bodies. The African Commission on Human and Peoples’ Rights drafted the model law for African States on access to information that states that the right to information shall be guaranteed by law and sets out principles of how this will be done.
Media/Press freedom is the right of media outlets and media workers to produce and disseminate news and information without interference.
The media need to have freedom of expression and ATI (Access to information) to adequately fulfil their democratic role, for the benefit of citizens. Media freedom has various components that ensure the media are indeed, free to function.
These components include pluralism, media independence from State or other control and the safety of journalists, all of which are indicators of the freeness of the media.
All these rights have limitations and are not absolute. But limitations should only be within specific circumstances.
Access to information must pass a three-part test ensuring first that restrictions are prescribed by law are necessary in a democratic society, and serve legitimate interests, such as national security interests.
The media have freedoms, but are expected to be responsible through fair, accurate and ethical reporting and cannot promote hate, incite war, among other vices. Section 61(5) of Zimbabwe’s Constitution limits freedom of expression and freedom of the media as it excludes incitement to violence; advocacy of hatred or hate speech; malicious injury to a person’s reputation or dignity; or malicious or unwarranted breach of a person’s right to privacy”.
Why media freedom?
Ideally, the media are expected to fulfil crucial societal roles, especially when they function well without interference. We’ve often heard of the public media’s role to “educate, entertain and inform”, which is a critical function in ensuring that citizens access information that allow them to make informed decisions about issues that affect them. Media also act as watchdogs in the public interest, investigating and producing information that enhances transparency and the accountability of those in power.
Access to information and freedom of the media do not just apply to legacy media, but digital platforms as well. In the digital age, the main change that has enhanced the way that information is produced and accessed is that everyone produces, or can potentially produce content via websites, and various blogging platforms. The digital age has not only changed who is a content producer, but there are now more independent platforms for distributing content and this has ensured that citizens have greater access to more news and information than before; which in turn also enhances democracy.
While digital technologies expand the possibilities of freedom of expression, there are some emerging issues that affect usage of the internet. Technological changes have also brought with them challenges of hate speech, disinformation, fake news, misogyny, bullying and this has increased questions around accountability and what mechanisms exist to keep social media in check. Changes in technology have also created new ways of controlling freedom of expression especially by those in power.
The role of intermediaries
In understanding access to information and media freedom online, there is also the need to understand how these rights can be promoted or suppressed. The role of intermediaries in this is important.
Intermediaries facilitate ATI between citizens and sources of information (including legacy media) and include internet service providers (ISPs), search engines (for example Google), web hosting platforms, Web 2.0 platforms (wikis and blogs that allow people to disseminate information) and social media such as Facebook and Twitter, which connect people to each other, facilitate exchange of information and ideas; distribution of user-generated content; and distribution of professional media content. Citizens are increasingly getting news via these platforms. The platforms can provide news directly, or become a pathway that allows for access to news from various sources.
These intermediaries have a positive role to play. However, there is potential of control of these by government and other influences. They can also act as gatekeepers, affecting the kind of content that people see or do not see. Intermediaries can be used by governments to block expression, as happened in 2016 following widespread nationwide protests in Zimbabwe.
Zimbabweans, for a few hours, failed to access WhatsApp and reports are that the government had ordered service providers, among them, Econet Wireless, Liquid Telecom Zimbabwe, Telecel, TelOne, and ZOL Zimbabwe to disrupt services amid fears that social media was a key driver in the protests. Intermediaries themselves can also be closed down or shut by the government. Governments also at times introduce laws that make intermediaries accountable for content that is carried on their platforms.
There have been increased calls on the need for intermediaries to play a stronger gatekeeping role through filtering or taking down content, including fake news, hate speech, among other issues.
An interesting argument has for example, been raised about content that promotes negative cultural practices. A recent debate on eNCA criticised Facebook, for example, for taking 15 days to pull down a video on the auction of a 17-year-old South Sudanese girl following complaints about it.
Media Monitoring Africa director William Bird suggested this was a systemic failure in the Facebook system in protecting the rights of children online, as the platform unwittingly promoted child marriage.
However, just to note, freedom of expression online is protected under various human rights instruments that include the 2011 United Nations Human Rights Committee General Comment No. 34, which protects all forms of expression and states that restrictions should only be on content and not generic bans on platforms. The 2014 African Declaration on Internet Rights and Freedoms states the need to protect the rights to expression and ATI, among others.
As has already been indicated, everyone can produce content online. This, however, brings in issues of verification of information, its accuracy and reliability, as well as accountability of social media in terms of content shared. The proliferation of hate speech, disinformation, fake news, cyber-bullying, misogyny, among other issues, have compounded this dilemma. The case of the South Sudanese girl and the role of intermediaries in promoting greater accountability is a case in point.
The main issue here, however, is the balancing of rights online, that is, rights of people (attacked through bullying, digital disinformation, fake news, among others) and what are considered threats to democracy; and continuing to promote freedom of speech and freedom of the Press online. There seems to be greater questioning of the democratising role of the online media, given Russian disinformation campaigns in attempts to impact election outcomes in various countries, including the United States. The role of the global tech giants and their exploitation of platforms for their own gains have led to increased conversations on how to protect countries and people from these.
Disinformation has been discussed at various platforms from those that look at democracy and elections, child and gender issues, to those that are concerned about sovereignty of nations, particularly in the United States and the Western world. A range of policy actions have been suggested, including increasing accountability mechanisms online, strengthening journalism as a counter to disinformation, as well as legislative provisions on data security and cyber security.
The democratic role of the internet and the great potential it has in promoting freedom of expression, access to information and media freedom cannot be understated.
There, however, remains the need to actively protect this right, and also balance this rights with the rights of other people and entities. It’s a relatively new area and the governance infrastructure that is proposed for Zimbabwe must consider ATI, free expression and Press freedom as rights that need to be protected by policy.