Media and the Law: Legal Issues and Challenges
A report by MLDI's Peter Noorlander on the legal environment for the media.
The legal environment in which a media outlet operates is a crucial factor in its success. A liberal and empowering legal regime will allow media to publish hard-hitting investigative reports and fulfill their function as watchdog of democratic society without fear of legal sanction, thus helping to make governments more accountable. This is a public good lost to citizens of countries with restrictive legal regimes.
In a report to the Center for International Media Assistance, MLDI's legal director, Peter Noorlander, surveys the legal regime for the media in a number of countries.
The report surveys the different kinds of laws that affect the media and explains how they are used in many countries to influence the operations of news outlets and the information they offer. It focuses on restrictive laws more than on those of the enabling and empowering variety, for the simple reason that enabling laws are–unfortunately–relatively rare. It also considers how Internet-based outlets are affected by laws, and how the legal regime in a country affects the ability of individual bloggers or citizen journalists to hold their governments to account.
While the focus is on the impact of laws on media in the developing world, it also considers the use of laws–particularly on terrorism and libel–in other parts of the world. Many countries have inherited their libel laws from Britain or France, for example, and legal developments there continue to be influential elsewhere. Similarly, many countries have taken a copycat approach to introducing new anti-terrorism laws from the United States, the United Kingdom, and Western Europe and have applied them to clamp down on those who criticize the government.
There are some harsh findings. Statistics on the number of journalists in prison–the harshest possible use of the law against the media–indicate that at the end of 2010, there were more journalists imprisoned than at any other time in the decade. There has been a steady rise in the number of imprisoned journalists, from 81 in 2000 to 145 in 2010. While this is a troubling statistic, it must be noted that the problem of imprisonment of journalists is concentrated in a relatively small number of countries. More than two thirds of the cases are in China, Iran, Eritrea, and Burma. Together with Cuba, which was a consistent jailer of journalists until 2009, these countries have been responsible for 68 percent of all journalists’ incarcerations since 2006. The only other countries to have consistently jailed journalists in 2006-2010, though in lower numbers, are Uzbekistan, Ethiopia, Azerbaijan, Iraq, and Russia.
The laws that affect the media most are libel laws; national security and related laws; and licensing and registration laws. While there is a slight move away from criminal defamation laws, largely as a result of many years’ sustained effort of the media freedom community, both civil and criminal libel laws are still easily abused by represessive regimes to silence their critics. It is very easy to bring a libel claim, and comparatively hard to defend one. One of the easiest ways to silence a journalist or media outlet is to tie them up in endless libel suits.
National security laws are in similar active use: Of the 145 journalists imprisoned as of 2010, nearly half were in prison on charges of national security or acts to undermine the state.
But the report also finds that civil society action can push back repressive laws and abusive prosecutions. In the UK–a country with strong notions of democracy and civil society activism–a libel law reform campaign resulted, first, in decriminalization of libel, and second, in a governmental commitment to wholesale reform of the country’s libel laws. This will undoubtedly have an impact in other common law countries. In Malaysia, Gambia, and in Sri Lanka, all countries with much weaker traditions of democracy than the UK, journalists have defeated criminal trials against them on the back of civil society efforts, and the explosive growth in freedom of information laws is in no small part due to sustained campaigning on the issue by a number of NGOs.
The full report can be downloaded from the website of the Center for International Media Assistance.