I. Backdrop
In 2011, this author attended a conference on the media and human rights in Bonn under the auspices of Germany’s government-run international broadcaster, Deutsche Welle. At that conference, a speaker stated that the media was not doing its job properly unless it was promoting human rights. That statement made me wonder: is that actually true? Broader questions then came to my mind: what is expected by the human rights community of the media, and where does the media fit and sit within the contemporary business and human rights (BHR) debate? This article is my initial response to those questions.
A free news mediaFootnote 1 is crucial to the functioning of human rights and democracy. Media coverage reports and highlights information and narratives which shape public expectations and impel decisions, and it identifies authoritative and ‘worthy’ voices.Footnote 2 The media conducts investigations and holds powerful actors to account. Its analysis provides a coherent framework for the interpretation of complex events. The media boosts social empathy by telling people about others. It provides a social forum for dialogue, and it mobilizes people when it conducts campaigns.Footnote 3 The media also promotes human rights by highlighting violations, and endorsing human rights compliant policies. The work of the free media epitomizes the human right of freedom of expression in action.Footnote 4
However, the media is also capable of harming human rights, such as a person’s right to privacy and freedom from hate speech. Reckless reporting can endanger a person’s security and even that person’s right to life.Footnote 5 The media may also harm rights indirectly by promoting policies that are anathema to human rights, and influencing governments to adopt or retain such policies. In this respect, the media’s detrimental impact on human rights is systemic and potentially massive. In such cases, the media is arguably complicit in human rights abuses.
A major ongoing international debate concerns the human rights responsibilities and accountability of business entities. A framework to address corporate human rights abuses was adopted by the United Nations (UN) in 2011, the Guiding Principles on Business and Human Rights (Guiding Principles).Footnote 6 However, the BHR debate has generally ignored the media industry.Footnote 7
This article is a step towards redressing that gap in the debate by applying the Guiding Principles to the media business. In Part II, the Guiding Principles are introduced. In Part III, some of the harms to human rights generated by the media are discussed, including the notion of media complicity in human rights abuses. The media’s countervailing rights of freedom of expression significantly complicate the application of the Guiding Principles to the media industry, as the imposition of human rights responsibilities with regard to media content may infringe on legitimate rights of freedom of expression. Hence, in Part IV, the right of freedom of expression is subjected to analyses of its most common justifications in order to help elucidate the scope of application of the Guiding Principles to the media.
The analysis in Parts III and IV provides a platform for Part V, where the Guiding Principles are applied to the media. In this part, it will be concluded that the application of the Guiding Principles leaves significant scope for the media to be involved in significant human rights harms and abuses with regard to its publication of content. Given the danger that regulation of the media could breach its right to freedom of expression, many states rely heavily on the media to police its own human rights responsibilities. However, to date, the media shows little inclination to do so, and there is little evidence that civil society is pressuring it to do so. This leads to the discussion in Part VI, on whether the media is somehow morally different to other businesses, such that it deserves the special treatment under the Guiding Principles which it seems to receive.
Finally, in Part VII, I conclude that few people in the media industry would agree with the speaker in Bonn: the media is not largely expected to promote human rights. It is postulated that the Guiding Principles are an inadequately theorized tool for constraining human rights abuses by the media. This circumstance may potentially reveal deeper flaws in the Guiding Principles. For example, it may be that they cannot be applied properly when a business has conflicting ‘rights’ and ‘obligations’ in relation to human rights. Alternatively, it may be that the human rights lens is not appropriate for addressing the media’s detrimental impacts on human rights. At the least, a dialogue between the human rights community and the media industry must commence, to try to work out how human rights might apply in the context of the responsibilities of one of the world’s most important and powerful industries.
II. The UN Guiding Principles on Business and Human Rights
International concern over the perceived lack of human rights accountability for business led to the adoption of the Guiding Principles by the UN in 2011. These non-binding Principles provide guidance to states and business to help guard against adverse human rights impacts by the latter. The Guiding Principles are built on three pillars: the state duty to protect, the corporate responsibility to respect, and the need to ensure that remedies are available to victims of human rights abuses.
The first pillar recognizes the state’s duty to protect a person from having his or her rights harmed by business enterprises. This is an aspect of the state’s general duty under international human rights law to protect individuals from human rights breaches by third parties within their territory and jurisdiction. This duty ‘requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication’.Footnote 8 Therefore, states have international obligations to regulate business entities, including the media, to prevent them from harming the human rights of others.
The second pillar is that businesses, including media companies, have an independent responsibility to respect human rights, separate from the state’s Pillar 1 duties. The ‘responsibility to respect’ stems from ‘a global standard of expected conduct for all business enterprises wherever they operate’.Footnote 9 Therefore, Pillar 2 goes beyond the strict boundaries of international human rights law into the realm of the social (rather than legal) obligations and expectations of business. Businesses must avoid causing harm or contributing to human rights infringements, and take steps to prevent or mitigate such impacts.
The third pillar is that victims of adverse human rights impacts from business must have access to a remedy. Remedies may be available via formal processes under the auspices of the state, or less formal processes under self-regulatory systems devised by businesses.
III. Human Rights Harms and the Media
The media is capable of harming human rights in many ways. Like any employer, it may harm the rights of its workers by acting in discriminatory ways, or by abusing labour rights generally. Of more relevance to this article are the ways in which the media harms human rights in pursuing its core business, that is its publication of stories or the actions taken to facilitate the publication of stories (e.g., to uncover information).
A. Privacy
Perhaps the most obvious impact by the media on human rights concerns the right to privacy, protected, for example, in Article 17 of the International Covenant on Civil and Political Rights (ICCPR). Under Article 17(1), states have obligations not to arbitrarily intrude into an individual’s privacy, including their honour and reputation. They have positive obligations under Article 17(2) to prevent others, such as the media, from doing so. Like most human rights, privacy is not an absolute right. Article 17(1) prohibits only ‘arbitrary or unlawful’ interferences with privacy.Footnote 10
The phone hacking scandal which engulfed the British tabloid media in 2011 led to a comprehensive investigation of press practices by Lord Justice Leveson in 2012.Footnote 11 Victims of phone hacking included the Royal family, celebrities and their families, victims of crime and their families.Footnote 12 Delinquent practices extended beyond phone-hacking to stalking, hacking of computers, and the bribing of officials for personal information.Footnote 13 The human right to privacy, as well as British domestic law, was likely breached.Footnote 14
B. Other Human Rights
Breaches of privacy may give rise to associated breaches. To the extent that intrusions concern the privacy of children, children’s rights may be at stake, as outlined in the Convention on the Rights of the Child and Article 24 of the ICCPR.Footnote 15 Extreme press harassment can infringe upon a person’s security of the person, which is recognized as a human right in Article 9(1) of the ICCPR.Footnote 16 The callous exploitation of people’s travails, and intrusions into private grief, as has occurred with the families of murder and disappearance victims, is arguably degrading treatment within Article 7 of the ICCPR.Footnote 17
Media stories during an ongoing trial can prejudice an accused person’s right to a fair trial under Article 14 of the ICCPR. Irresponsible reporting can put lives at risk, in breach of the right to life under Article 6 of the ICCPR, or threaten the security of the person under Article 9.Footnote 18 The most extreme examples of hate speech, such as the genocidal exhortations by broadcasters on Radio Milles Collins in Rwanda, clearly fall into this category.Footnote 19 Indeed, Article 20 of the ICCPR prohibits the publication of hate speech and war propaganda, even without such brutal consequences.
C. Complicity
The media may indirectly foster or facilitate attitudes which undermine human rights. Media stories may encourage, for example, hostility towards migrants and refugees,Footnote 20 Islamophobia and other discriminatory attitudes. It can also encourage or at least support the adoption by governments of policies which breach human rights, for example, by supporting the removal of legal remedies for human rights abuses,Footnote 21 harsh treatment of asylum-seekers, the torture of terrorist suspects, disproportionate punishment for crimes,Footnote 22 or austerity measures which drive the most vulnerable into crippling poverty.Footnote 23 The media does not itself implement these policies, but can help to generate the political and social environment which leads to their adoption or retention.Footnote 24
These media impacts may not generate as visceral a response as stories regarding non-media industries, such as reports of sweatshops and environmental contamination. The human rights impacts of media stories are nevertheless serious and systemic if they are contributing to policies which have a broad and detrimental impact on thousands of people.
The media can only exercise such an influence if it is powerful enough to do so, something which is difficult to deny.Footnote 25 The philosopher Alain de Botton states: ‘Societies become modern, the philosopher Hegel suggested, when news replaces religion as our central source of guidance and our touchstone of authority. In the developed economies, the news now occupies a position of power at least equal to that formerly enjoyed by the faiths.’Footnote 26
Not only is the media powerful, it is meant to influence government. One of its key roles is to act as a check on governmental power. When it uses this power to promote or support human rights abusive policies, perhaps media organizations can be said to be complicit in government abuses.Footnote 27 The Guiding Principles warn all businesses to guard against such complicity.Footnote 28
The media can even influence human rights outcomes by its failure to report certain stories. For example, former UK Minister John Prescott highlighted in 2012 the UK media’s failure to report on proposed reductions to legal aidFootnote 29 (which have since come into force). The US media has arguably paid insufficient attention to US drone strikes, despite their lethal consequences and dubious legality under international law.Footnote 30 A failure to speak can amount to a failure to hold a government accountable, and therefore a possible facilitation of associated human rights abuses, and in some circumstances complicity in those abuses. After all, complicity can arise from omissions as well as acts.Footnote 31
‘Complicity in the business and human rights context refers to the indirect involvement of companies in human rights abuses’.Footnote 32 The publication of stories which are supportive of human rights abuses by the media could arguably constitute complicity in some circumstances. It is sometimes reasonably foreseeable that the promotion of a human rights abusive policy will facilitate the adoption or retention of that policy. In some circumstances it might be practically or politically impossible, or unlikely, or substantially less likely, for the policy to be adopted or maintained without the relevant media support. For example, the public’s acceptance of Australia’s offshore detention arrangements for asylum seekers who arrive in Australia without a visa, under which numerous serious human rights abuses are occurring, may not be sustainable without support for the relevant policies from significant sections of the media.Footnote 33
Domestic legal systems draw the line of actionable ‘complicity’ at different points, and the points will likely be different for the imposition of civil and criminal liability. Relevant considerations include the intention behind the alleged act of complicity, and the causal relationship between the act and the relevant human rights abuse. Any requirement of intent might be satisfied: an article that promotes a policy will often be published or written with an intention to influence the government to adopt or retain that policy.Footnote 34 However, a causal connection might be difficult to establish,Footnote 35 as it is rarely possible to identify the extent to which the media actually influences, if at all, the adoption or retention of a particular policy.Footnote 36 Therefore, perhaps it is doubtful that the type of potential media complicity outlined here is the type of complicity that would attract legal sanction.
However, ‘complicity’ for the purposes of the Guiding Principles need not attract legal sanction in order to be categorized as ‘complicity’. The term is said to have ‘legal and non-legal meanings’.Footnote 37 Businesses are warned to avoid complicity which might attract legal sanction, and also that which might attract the ire of civil society actors.Footnote 38 The Commentary to the Guiding Principles states: ‘Questions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties.’Footnote 39
The precise meaning of the term for the purposes of the Guiding Principles is not clear: ‘What constitutes complicity … is not uniform, nor is it static.’Footnote 40 The Commentary even infers that complicity can be in the eye of the beholder, as it may arise where a business enterprise ‘is seen as’ contributing to an abuse by another. It is surely possible that media stories which promote human rights abusive policies can ‘be seen as’ contributing to a government’s decision to adopt or retain that policy.
Of course, stories which oppose human rights may be balanced, or even outbalanced, by the many media stories which favour the protection of human rights (even within the same media outlet). However, the Guiding Principles make clear that a company’s good practices in one area do not ‘offset’ actions which harm human rights.Footnote 41
Hence, it is possible that any story by a media outlet which promotes or supports a human rights abusive policy can be said to be an act of complicity if the policy is adopted, and while it remains in place. Such a notion of ‘complicity’ is very broad, and indicates that some media outlets are routinely complicit in human rights abuse. This conception of complicity remains very broad even if one sensibly qualifies the notion by restricting it to major media outlets which have significant influence and power. A definition of complicity that labels so many media outlets as participants in human rights abuse is concerning. However, perhaps such breadth in the definition is warranted, given the serious and systemic detrimental outcomes for the enjoyment of human rights.
IV. Freedom of Expression: The International Human Right
The identification of human rights abuses arising, directly or indirectly, from the publication of media content, or actions taken to facilitate publication of content, is complicated by the existence of countervailing rights of freedom of expression.
Article 19(2) of the ICCPR reads:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
The Human Rights Committee (HRC), the monitoring body established under the ICCPR, stated in General Comment 34:
A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society. The Covenant embraces a right whereby the media may receive information on the basis of which it can carry out its function. The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output.Footnote 42
Furthermore, the media is recognized as having special rights, such as the right not to disclose confidential sources.Footnote 43
Media corporations as such arguably have no right to freedom of expression as they are not human. The question of whether companies have human rights is controversial, and international human rights bodies and domestic jurisdictions have different practices in this regard.Footnote 44 In any case, individual journalists, editors and proprietors have relevant free speech rights. For ease of analysis, the following text will refer to ‘media rights’ of free speech or expression, while acknowledging the controversy over the vesting of human rights in artificial people. I will return to this point in my conclusion, Part VII.
The rights under Article 19(2) may be limited in accordance with Article 19(3) by restrictions ‘provided by law’ and ‘necessary’ for protection of ‘the rights or reputations of others’, ‘national security or of public order (ordre public), or of public health or morals’. Compulsory restrictions on expression are imposed by Article 20, which mandates the prohibition of propaganda for war and hate speech on racial, religious or national grounds.
The regulation of media content in order to prevent human rights harms arising from that content must take into account countervailing rights of freedom of speech. The ‘balancing’ equation, that is, the weighing up of the media’s freedom of expression against a countervailing human right, is often difficult to calculate. It is difficult, for example, to identify the precise point at which a publication which exposes a person’s private details turns from being a legitimate exercise of freedom of expression into a breach of that person’s right to privacy.
Such ‘grey zones’ arise with regard to countervailing rights beyond privacy. Let us consider one concrete example. The publication of stories about the burning of a Koran by fringe pastor Terry Jones in Florida in 2011 arguably led to the murder of United Nations employees in Afghanistan by outraged Islamist extremists.Footnote 45 Can one say that those stories fell outside the zone of protected free speech and breached the right to life as it was, sadly, reasonably foreseeable that the story would lead to riots and murders?Footnote 46 There are grave consequences for the media if it is never to report on news that might upset extremists in some part of the world. At the same time, perhaps the media should be condemned for giving a man with a tiny following the attention he clearly craved, while recklessly risking the lives of others.
Similarly, it is difficult to evaluate the human rights equation with prejudicial media stories which fall short of hate speech.Footnote 47 Certainly, the media can and does perpetuate unhelpful stereotypes, including routine negative portrayals of disadvantaged groups. For example, the Leveson inquiry heard much evidence of discriminatory coverage of groups such as women, Muslims, refugees, the mentally ill and transgendered people.Footnote 48 Such stories will, in some instances, cross from the zone of protected free speech into the zone of hate speech or violations of the right to be free from discrimination.Footnote 49 However, they will often not, in which case they will constitute protected speech within the scope of the right to freedom of expression.
Finally, most instances of complicity, as described above, seem likely to be within the zone of protected free speech. The right to freedom of expression does not generally require the media to refrain from stories which encourage non-compliance with human rights. This contention is explored further in Part V.
The existence of media rights of free expression makes it very difficult to apply the Guiding Principles to the media with regard to media content. When is it exercising rights of free expression, which surely must be respected under the Guiding Principles, even if the resultant publication should harm the rights of another? When has it gone too far, such that a story has exited the sanctuary of the zone of the right of free expression, and human rights responsibilities can be properly imposed under the Guiding Principles?
A. Justifications for Freedom of Expression
In order to give clearer contours to the scope of media responsibilities under the Guiding Principles, the right to freedom of expression will now be examined more closely. Professor Kent Greenawalt succinctly laid out the major justifications for freedom of speech in a 1989 Columbia Law Review article,Footnote 50 which informs the following analysis.
Greenawalt split his nine justifications between consequentialist and deontological justifications, as I will do, with the first six justifications being consequentialist and the last three being deontological. Consequentialist theories of free speech justify the right by reference to the good consequences which (are said to) flow from free speech. In contrast, deontological justifications are not focused on the instrumental value of free speech, but on the inherent value of free speech as an end in itself.
I will further split up the consequentialist theories, with the first three categorized as consequentialist theories related to a need for speech diversity, and the second three categorized as consequentialist theories related to particular types of content.
1. Consequentalist Justifications related to a Diversity of Speech
The most common argument for free speech is that the suppression of speech risks the suppression of truth.Footnote 51 The perpetration of falsehoods is said to reinvigorate truth by testing it and prompting its re-examination. Finally, according to John Stuart Mill, true statements are ultimately more likely to prevail than false ones if all ideas are permitted to flourish.Footnote 52
A variant on the ‘truth’ justification is US Supreme Court Justice Holmes’ famous metaphor of a ‘marketplace of ideas’ serving to sieve out the truth.Footnote 53 However, Holmes may have been saying that there is no objective truth apart from that which emerges from the marketplace.Footnote 54 If so, truth becomes the domain of the majority or those with the greatest power to project their voices.
Will truth triumph over falsity? People will often ‘acquire reinforcement of views that conform with social conventions or serve their particular interests or unconscious desires’. This is particularly so ‘if the disproportionate influence of a few centers of private power over what gets communicated is likely to be exercised in favor of dominant and comforting views’.Footnote 55 Obviously, this last statement is of relevance to the media.
Journalists generally claim to be committed to the truth and accurate reporting.Footnote 56 However, 24/7 news coverage and the constant buzz of social media threaten this commitment by increasing the pressure for speedy reporting which jeopardizes the verification process.Footnote 57 Furthermore, there may be a correlation between a person’s attachment to a news source and his or her level of knowledge of international and national affairs. Leveson concluded that there existed within the UK press a ‘cultural strand … which is deliberately, recklessly or negligently inaccurate’.Footnote 58 A study by the US’s Fairleigh Dickinson University found that people who relied on cable outlet Fox News Channel for their news were significantly less informed than others, even those who watched no news.Footnote 59
Realistically, the state cannot demand ‘truth’ from the media. Who would be the arbiter of truth and how can objective ‘truth’ be determined? Furthermore, much media content is based on opinions or values, which are neither true nor false. In any case, the truth justification allows for the reporting of falsities, and the ‘marketplace of ideas’ thesis postulates that the majority, rather than all people, believe in the truth. This leaves room for ‘rogue’ outlets such as the apparently misleading Fox News Channel.
The ‘truth’ justification indicates that true statements have a greater weight when weighing an instance of expression against a countervailing human right, than a false statement.Footnote 60 However, many of the instances cited above of human rights harms from the media concern the publication of ‘true’ statements. After all, tabloid phone-hacking uncovered truths about its victims, while Terry Jones did in fact burn a Koran.
Greenawalt’s second free speech justification concerns ‘interest accommodation and social stability’.Footnote 61 If society is going to adequately accommodate the various interests and desires of its members, we need to know what those interests and desires are. A third justification is that free speech will promote independent thought and judgment, as people are exposed to differing arguments and views.Footnote 62
The media is a necessary outlet for the expression of differing interests and points of view. However, certain points of view in the media can drown out others.Footnote 63 For example, Stephen Gardbaum has commented that the US media has reduced ‘live politics’ and kept many issues off the US political agenda, including those commonly debated in other democratic states such as nationalized healthcare.Footnote 64 De Botton argues that ‘the questions that end up being asked [in the news] in a number of areas fail to range beyond some punishingly narrow boundaries’.Footnote 65
The ideal state response, in light of these three free speech justifications (i.e., truth, accommodation of interests, and promotion of independent thought) is to guarantee media diversity. Diversity should ensure that there is a functioning marketplace for ideas such that the truth has a chance to be sifted out. It should also ensure that society’s various interests are catered for, and that people have access to enough outlets so as to have the opportunity to foster their independent thoughts.Footnote 66
2. Consequentalist Justifications related to the Content of Speech
Greenawalt’s fourth justification is that free speech holds power to account,Footnote 67 the classical function of the media as the ‘fourth estate’. The Washington Post’s dogged coverage of the Watergate scandal in the early 1970s is one of innumerable examples of profoundly important investigative reporting which scrutinized the exercise of power.Footnote 68
In this regard, significant media failures may be noted. The US media was roundly criticized for its failure to interrogate adequately the Bush administration’s reasons for going to war with Iraq in 2003 prior to that war. Ten years later, journalist Paul Farhi defended those failures by referring to beating ‘war drums’ after the September 11 attacks, and the fact that the public was receptive to ‘alarming statements about Iraq made by Bush and his advisers’.Footnote 69 Farhi’s excuses indicate that the media allowed itself to be swept along by self-righteous vengeance in the War on Terror. That is not an entity that was functioning as a useful check on populist power.
There are other powerful entities besides government, such as corporations, and the media has held them to account too.Footnote 70 The Sunday Times’ expose of Distillers and its cover-up of the dangers of thalidomide in the 1970s is a classic story of this sort.Footnote 71 However, the media may be less inclined to investigate private power than public power for a variety of reasons. Relevant information can be harder to obtain. The absorption of more and more media outlets into global conglomerates likely undermines their capacity to monitor those conglomerates.Footnote 72 Indeed, the market may deliver a situation where the media largely replicates ‘the same forces that dominate social structure’,Footnote 73 preserving rather than challenging power imbalances.
Greenawalt’s fifth justification for freedom of speech replicates Alexander Meiklejohn’s influential argument that ‘free speech contributes importantly to the functioning of liberal democracy’. Free speech ensures that citizens and the elected, as well as candidates for election, can communicate freely.Footnote 74 This justification is pertinent to freedom of political expression and communication.
However, apolitical stories, such as those related to celebrities and sport, are more popular, and are increasingly crowding out political content.Footnote 75 In the past, such stories attracted an audience, who might then be exposed to political issues in other stories.Footnote 76 However, the online environment now facilitates ‘unbundling’ so people can ‘click on’ individual links and avoid other news.Footnote 77
Greenawalt’s sixth justification is that free speech promotes tolerance as we are forced to hear the points of view of people that are ‘not like us’, a theory put forward by Professor Lee Bollinger in 1986.Footnote 78 This theory does not support the demonization of vulnerable groups or ‘law and order’ scare stories. Nor does it support polarized uncompromising opinion, which is becoming more prevalent.Footnote 79
These three justifications (i.e., holding power to account, aiding liberal democratic politics, and promoting tolerance) each indicate that certain types of expression, namely speech which scrutinizes power and which promotes tolerance, as well as political expression, are of a higher value than other types of expression. If so, breaches of countervailing human rights might more readily be found if the expression at issue concerns trivial speech, commercial speech or speech which complacently accepts rather than interrogates power.
3. Deontological Justifications
The three deontological theories focus on free speech as an end in itself rather than a means to an end, so they tend to favour maximal protection for freedom of expression.
Greenawalt’s seventh justification essentially correlates with libertarian notions that the private sphere, including freedom of speech for individuals and private enterprise, should be as free as possible from government regulation.Footnote 80 Greenawalt’s eighth free speech justification is that people should be treated as rational and autonomousFootnote 81 or, in the words of the political philosopher Ronald Dworkin, ‘morally independent’.Footnote 82 The government should not therefore try to shield people from ‘undesirable’ communications.
Greenawalt’s ninth and final justification is that freedom of speech entails the treatment of people with dignity and equality.Footnote 83 It is similar to his eighth justification but focuses on the interests of the speaker rather than the audience.Footnote 84 Freedom of expression is said to be important for the realization of ‘individual self-fulfilment and self-realisation’, enabling people to take control of their own destinies.Footnote 85 Suppression of views entails a failure to treat those whose views are suppressed with equality and dignity.
B. Concluding Insights on the Media and Freedom of Expression
International human rights law is essentially based on deontological notions of freedom, equality and dignity, much like the final three theories espoused by Greenawalt regarding free speech. However, consequentialism is not irrelevant. Utilitarian considerations are undoubtedly relevant in assessing the limits of a human right such as freedom of expression, and in balancing rights when they conflict with each other.
The consequentialist theories cited by Greenawalt support the giving of greater weight to freedom of expression when the relevant content entails true stories, political reporting and stories which analyze power, and lesser weight for content entailing speculative and trivial stories, divisive attacks on marginalized persons and bombastic partisan opinion.
It is probably true that certain types of expression rank higher in the pantheon of free speech, such that some types of content are of greater weight, and are therefore protected more, than others. For example, US courts have long attributed a lower value to commercial speech, such as advertising, compared to other forms of speech in applying the First Amendment.Footnote 86 The European Court of Human Rights has indicated that ‘the entertainment press’ might be more likely to be found to have crossed a line and breached the rights of others (often the right to privacy), thus acting beyond the legitimate bounds of the right to freedom of expression, than more serious news media.Footnote 87
However, freedom of speech cannot protect only ‘serious’ speech, lest it become an elitist tool. There must be ample room for stories on celebrity gossip, sports, movie reviews, and bellowing rhetoric, which all contribute to the cultural milieu of modern societies. The right to freedom of expression provides significant protection to non-political, trivial and even, occasionally, speech which marginalizes others.Footnote 88 For example, the rights of the entertainment press have prevailed against claims of celebrity privacy in a number of cases before the European CourtFootnote 89 (and have been defeated in others).Footnote 90 Commercial speech was found to be protected speech under the ICCPR in Ballantyne et al v Canada.Footnote 91
Finally, most of Greenawalt’s free speech justifications support the notion that states must do what they can to ensure an adequate level of media diversity. Pluralism and diversity will ensure greater access to the truth, as well as the range of content (including political content) that might be of interest to the vast range of readers, viewers and listeners. A diverse media is more respectful of the equality and dignity of speakers and audiences than a monopolized media.Footnote 92
V. Application of the Guiding Principles to the Media
In light of the above analysis, I now turn to apply the Guiding Principles to the media as an industry.
A. Pillar 1 and the Media
1. Content Regulation
The first pillar of the Guiding Principles entails that states must protect people from detrimental impacts on their human rights by business. Thus, for example, states have a duty to prohibit hate speech and war propaganda by the media; these are compulsory restrictions on freedom of expression imposed by international human rights law.Footnote 93
The implementation of Pillar 1 obligations is very complex with regard to the regulation of media content. In particular, the state cannot have a duty to curtail the free speech rights of the media. It can only have a duty to curtail those exercises of expression which fall outside the scope of the right to free speech. This requires a careful balancing of countervailing rights.
Many situations where the media’s potential rights of free expression conflict with another’s potential human right are in ‘grey zones’. While the gratuitous hacking of phones to uncover embarrassing information seems a clear breach of privacy, the same is not true where a person’s privacy is compromised by a media outlet seeking, in the public interest, to expose major wrongdoing.Footnote 94 While the reporting of fringe pastor Terry Jones may have amounted to the recklessly disproportionate coverage of a very unimportant man, the same is not true of the publication of details of human rights abuses by US authorities in Abu Ghraib and Guantanamo Bay, even though the latter has also enraged Islamist extremists and probably led indirectly to homicidal responses.Footnote 95
The process of balancing conflicting rights in the ‘grey zone’ inevitably leads to grey zones within the implementation of Pillar 1, where general rules are impossible to devise.Footnote 96 As noted above, certain types of speech are likely to be granted greater weight than others for the purposes of such a balance. However, such ‘speech hierarchies’ are helpful rather than decisive in making such determinations.
A state has two broad choices in dealing with such grey zones. It can err on the side of media freedom or err on the side of media containment. Liberal democracies have tended to do the former. Many other states have opted for the latter, and, unsurprisingly, frequently breach the right to free expression. The reality, when such a great deal of nuance is required, is that many states will cede much of the space regarding conflicting rights to be dealt with by media organizations themselves under Pillar 2 (discussed below).
Alternatively, the limits of media freedom can only be worked out on a case by case basis by courts or tribunals in individual cases based, for example, on civil claims related to potential human rights abuses (e.g., tort actions based on interferences with privacy, or negligent endangerment of one’s safety). Realistically, such cases will be rare within the ‘grey zones’ as litigants will be uncertain of the outcomes, so litigation will be risky.
Under Pillar 1, states should prevent certain types of corporate complicity in human rights abuses, including complicity in state abuses.Footnote 97 However, states have no general duty to prevent the type of complicity discussed in Part II of this article, where media outlets offer moral support for human rights abusive policies. International human rights law does not demand that the media always oppose the adoption of policies that breach human rights, or that the media refrains from supporting such policies. Therefore, such publications generally fall within the zone of protected free speech. Indeed, some of Greenawalt’s justifications demand that such stories be permitted. For example, such stories are likely to entail political speech. The curtailment of such stories would impinge on the accommodation of certain societal interests. It would fail to treat a range of speakers and audiences with equality and dignity.
Furthermore, just as truth arguably needs falsity to reinvigorate it, perhaps the verbal promotion of human rights needs antagonistic arguments to gain strength in ‘the mud pit of normative brawling’.Footnote 98 If ‘the other side’ is banned, the ‘human rights side’ of a debate will probably become sloppy and complacent, and may be perceived as propaganda.
Perhaps, rather than censoring stories which promote human rights abuses, a state could demand that human rights (and other) issues be treated with ‘fairness’ and ‘balance’. For example, the fair treatment of issues regarding criminal justice and the punishment of criminals might require acknowledgment of declining crime rates. A story about asylum seekers could acknowledge the awful circumstances which prompt people to flee their homes, rather than perpetuate the simplistic idea that ‘illegal immigrants’ are ‘flooding’ richer countries. Of course, any such requirement of balance will mean that stories which are in favour of human rights would have to acknowledge ‘the other side’ of the argument.
While loose guidelines regarding fairness have been imposed by some states with regard to broadcast news licenses,Footnote 99 it is exceedingly difficult for any government to strictly regulate the inherently subjective notion of ‘fairness’.Footnote 100 Similarly, a forced ‘balance’ can lead to distortion.Footnote 101 Finally, ‘bias’ is too often mistaken for coverage that one disagrees with.Footnote 102 In any case, the motives of any government in regulating fairness, balance and bias in the media, especially with regard to political coverage, are inherently suspect.
2. Diversity and Rights to Receive Information
As noted above, free speech theories generally support state duties to provide for a pluralistic and diverse media. Furthermore, a diverse media reduces the severity of above-mentioned instances of media complicity in human rights abuses, as they reduce the impact and influence of individual media outlets.
Article 19(2) of the ICCPR protects the freedom to receive information. General Comment 34 states that ‘[a]s a means to protect the rights of media users, including members of ethnic and linguistic minorities, to receive a wide range of information and ideas, States parties should take particular care to encourage an independent and diverse media.’Footnote 103 It further provides that:
The State should not have monopoly control over the media and should promote plurality of the media. Consequently, States parties should take appropriate action, consistent with the Covenant, to prevent undue media dominance or concentration by privately controlled media groups in monopolistic situations that may be harmful to a diversity of sources and views.Footnote 104
Furthermore, the Charter of Fundamental Rights and Freedoms of the European Union 2010, in its Article 11 on freedom of expression and information, states that ‘pluralism of the media shall be respected’.Footnote 105
States have a duty under Pillar 1 to protect their people’s rights to receive information from the stifling impacts of media monopolies. Public broadcasting outlets, so long as they operate with independence from the government,Footnote 106 are a key means of providing for important media content which is not otherwise supported by commercial exigencies.Footnote 107
States can facilitate diversity with controls on ownership, including ownership across different types of media platforms. However, it seems that states will tolerate high proportions of market share before they curtail further acquisitions by a media proprietor. For example, the European Commission guidelines specify that market dominance in the electronic communications market, the trigger for regulatory controls, only arises once market share reaches 40 per cent.Footnote 108
While states may try to, in the words of General Comment 34, ‘encourage’ media diversity, market conditions may not be able to sustain significant diversity. For example, the number of newspapers in Western countries has been declining for a century, as economic conditions have driven greater consolidation of newspaper holdings and shutdowns.Footnote 109 Furthermore, UNESCO reported in 2014 that global economic dynamics were leading to greater media concentration across the world.Footnote 110
An alternative assessment of diversity and plurality, other than numbers of proprietors, is the number of views put forward. Multiple proprietors often share similar interests and promote similar agendas.Footnote 111 In 1966, Jerome Barron suggested that the US media, despite a high number of owners, was dominated by bland majoritarian values.Footnote 112 Today that may translate into general media support for neo-liberal ideologies which reflect the ‘Tweedledum and Tweedledee’ politics of major parties in many states.Footnote 113 Yet international human rights law does not seem to demand that states provide for a right of access to the media for individuals, even in its own public broadcasting outlets. In Haider v Austria, the European Commission on Human Rights stated: ‘Article 10 [of the ECHR] 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 his opinion …’Footnote 114
3. The Internet and Diversity
Growing numbers of internet users have unlimited access to diverse sources of news, both domestic and international, including new types of media outlets such as news aggregators and ‘citizen journalists’. Social media and bespoke news services will only become more popular as the generations of digital natives grow. The internet may ‘solve’ problems regarding diversity and ‘sameness’ in the media.
However, it is likely that certain outlets will continue to dominate while others cluster in smaller enclaves. Those enclaves will not be able to match the influence of ‘the mainstream’ due to the splintering of their voices and, consequently, their influence. Indeed, excessive fragmentation is problematic as it dilutes the power of the media overall, restricting its effective watchdog role. Footnote 115
State duties regarding diversity extend to the internet itself, such that ‘net neutrality’ should be guaranteed. Otherwise, internet service providers will be able to provide easier access to certain content, which would inevitably lead to the dominance of the voices represented in that content over other voices.Footnote 116
4. Conclusion on Pillar 1
The application of Pillar 1, assessed by itself and without reference to the other pillars, leaves significant scope for media outlets to operate so as to impact seriously and detrimentally on the enjoyment of human rights. I now turn to analyze whether the application of Pillar 2 changes that preliminary conclusion.
B. Pillar 2 and the Media
Pillar 1 is governed by the strict requirements of international human rights law, whereas Pillar 2 extends into the amorphous arena of social expectations—that is ‘a global standard of expected conduct for all business enterprises’.Footnote 117 Pillar 2 ‘exists over and above compliance with national laws and regulations protecting human rights’.Footnote 118 Pillar 2 arguably extends the human rights terrain covered by Pillar 1. It is possible that businesses have responsibilities under Pillar 2 even though states lack corresponding duties under Pillar 1. This raises the possibility that businesses may have, for example, a responsibility to avoid complicity of the sort discussed in Part 2, even though states have no Pillar 1 duty to prohibit such complicity. This ‘mismatch’ between Pillars 1 and 2 arises most obviously with regard to complicity, given that complicity has both legal and non-legal meanings, as discussed in Part III.
Given the chilling impacts on media freedom of rigorous Pillar 1 enforcement, most liberal democratic states leave much of the detail regarding content ‘regulation’ and human rights harms to Pillar 2. States have deferred to systems of self-regulation, probably to a greater degree than they do with other industries.Footnote 119 Of ‘the 25 countries deemed to have the greatest freedom of the press, 21 have systems of self-regulation’.Footnote 120
Voluntary codes of conduct and non-binding adjudicatory processes have proliferated within the overall picture of media regulation in liberal democracies. They focus on values such as accuracy, fairness, the public interest and independence.Footnote 121 While those concepts may overlap with human rights concepts, such codes are not written with a focus on the human rights of others. In contrast, the media’s own freedom of expression is often strongly emphasized.
The Code of Conduct in the UK for the press, prior to (and post-) Leveson, arguably highlighted human rights in emphasizing privacy, non-discrimination, non-harassment and children’s welfare. Yet the policing of this Code by a Press Complaints Commission (PCC), a voluntary industry regulator, failed to prevent the press abuses highlighted in the Leveson inquiry. It is premature to judge the performance of the PCC’s replacement, the Independent Press Standards Organisation (IPSO), which commenced operations in late 2014. However, it may be noted that IPSO does not comply with a majority of the relevant Leveson report recommendations.Footnote 122
Certainly, there are many news outlets which strive to live up to these codes and standards with integrity. However, many news outlets seem not to care so much. The history of ‘the news’ is littered with discreditable departure from the values in such codes. Early political journalism was extremely partisan,Footnote 123 while ‘yellow journalism’, prioritizing sensationalism and hyperbole, was popular in the late nineteenth century.Footnote 124 The twentieth century introduced obsessions with celebrity, gangsters and crime,Footnote 125 while we have witnessed the exposure of severe tabloid excesses in the UK in the twenty-first century. Furthermore, traditions of journalistic ethics are not well established in media outlets in new democracies, such as Indonesia.Footnote 126
The difficulties associated with the concepts of fairness and balance, cited above regarding Pillar 1, also apply with regard to Pillar 2. Indeed, many media outlets are blatantly politically partisan. Fox News Channel is Republican. The UK Mirror backs the British Labor party. News Corp outlets the world over are conservative. Leveson stated that many ‘want [issues] to be presented in a partisan way’, which helps to explain their loyalty to particular sources.Footnote 127
What should media companies do under Pillar 2 in such circumstances? As with all industries, they should take steps, including due diligence exercises, to respect human rights by not harming the rights of others. They should avoid instances of complicity. However, as with Pillar 1, Pillar 2 is complicated by the existence of the media’s own human right to freedom of expression. The media might, and does, argue that society expects it to vigorously utilize its freedom of expression, rather than self-censor in order to respect the rights of others. Certainly, no media organization is likely to agree that it has a responsibility to ensure that all of its stories refrain from promoting policies and outcomes that are contrary to international human rights law. Therefore, it seems that few in the media business would agree with the speaker from the conference in Bonn, mentioned in the first paragraph of this article.
There is very little evidence that media companies are engaging in Pillar 2 due diligence to avoid harming the rights of others in their publication of content. Indeed, there is very little evidence that media companies are adopting explicit human rights policies in respect of their content at all.Footnote 128 Furthermore, there is very little evidence of civil society attempting to hold the media to account for human rights harm caused by its stories, apart from activism in the UK over the extraordinary hacking scandal.Footnote 129 Otherwise, the BHR debate seems to have largely bypassed a discussion of the media and the way that the industry operates.
Therefore, application of Pillar 2 does not change my preliminary conclusion, reached above after discussion of Pillar 1. Application of both Pillars 1 and 2 seems to allow media outlets to operate so as to impact seriously and systemically on the enjoyment of human rights.
C. Pillar 3 and the Media
If the media should cause or contribute to human rights abuse, a remedy should be provided to the victim. Pillar 3 anticipates both formal state-based remedies and less formal remedies that might be provided by the relevant business or industry. Examples of the former remedies, in the context of the media, include the availability of actions in tort.Footnote 130 As examples of the latter, the media industry may institutionalize rights to corrections and reply.
Pillar 3 is only activated when at least one of the first two pillars is engaged. Remedies are not required under Pillar 3 if there is no relevant state duty to protect under Pillar 1 or corporate responsibility to respect under Pillar 2. Therefore, the latitude extended to the media with regard to its capacity to harm human rights, which has been identified above with regard to both Pillars 1 and 2, must extend to Pillar 3.
VI. Is the Media ‘Special’?
The Guiding Principles ostensibly treat all businesses the same: they apply to all types of businesses with regard to all recognized human rights. However, the actual implementation of the Guiding Principles must, as a matter of practicality, vary from business to business. The above analysis indicates that the media is treated ‘lightly’ under the Guiding Principles with regard to human rights harms it is involved with.
Two particular conundrums arise with regard to the media. Unlike most industries, its raison d’etre is the exercise of a human right, namely freedom of expression. It exists to produce speech of a huge variety. States must tread especially carefully in regulating such an industry, lest regulation mutate into over-regulation which violates the right to free speech.
Secondly, the media is an important check on government. The media, despite its flaws, remains ‘the fourth estate’ with the important function of holding government and other powerful entities to account. Government regulation of such an industry is inherently problematic. History, including the current day, is littered with the persecution of journalists and the wilful abuse of media regulation by governments to discourage unfavourable coverage.
This does not mean that the media must be unregulated. But it might mean that the level of regulation expected in regard to the curtailment of human rights harms by the media is lower than with regard to other industries. Perhaps the media is entitled to some sort of ‘special treatment’ under the Guiding Principles. Therefore, the commentary below investigates whether the media is sufficiently different from other businesses as to deserve such special treatment.
Journalism is said to provide ‘… something unique to a culture: independent, reliable, accurate and comprehensive information that citizens require to be free.’Footnote 131 CP Scott, a legendary editor of the Manchester Guardian for over 50 years, indicated that the media was fundamentally different to other businesses when he wrote in 1921:
A newspaper has two sides to it. It is a business, like any other … But it is much more than a business: it is an institution; it reflects and it influences the life of the community … it has, therefore, a moral as well as a material existence …Footnote 132
However, the moral role of a media outlet may give way to its business role. William Peter Hamilton, the fourth editor of the Wall Street Journal has countered: ‘A newspaper is a private enterprise owing nothing whatever to the public… It is emphatically the property of the owner, who is selling a manufactured product at his own risk.’Footnote 133
The traditional media is currently in the midst of economic malaise around the world. The internet has cannibalized newspaper circulation and advertising revenues, and similar pressures are building on traditional broadcast media. Revenue losses lead to loss of staff and a loss of quality. The declining business environment exacerbates business pressures upon journalists, perhaps pushing the media’s ‘moral’ role further into the background.Footnote 134
A media outlet may be a vehicle by which its proprietor exercises enormous amounts of influence, which is quite different to the romantic image of brave journalists speaking truth to power. For example, all 173 papers in Rupert Murdoch’s global News Corp stable supported the 2003 Iraq invasion, an unlikely coincidence without proprietor intervention.Footnote 135
At least News Corp is a traditional ‘news’ company. In the twenty-first century, news outlets are increasingly becoming small components of giant conglomerates.Footnote 136 Writing in 2007, Kovach and Rosenstiel lamented that ‘we are seeing for the first time the rise of a market-based journalism increasingly divorced from the idea of civic responsibility’.Footnote 137 They add: ‘The conglomeration of the news business threatens the survival of the press as an independent institution as journalism becomes a subsidiary inside large corporations more fundamentally grounded in other business purposes.’Footnote 138
The commercial reliance of media outlets on advertisers may give the latter leverage to influence media content. Historically, advertisers tend to prefer less controversial coverage to more controversial coverage.Footnote 139 They are, naturally, unimpressed by stories which undermine their commercial interests.Footnote 140 It is difficult to measure the extent to which advertiser pressure influences media content as media outlets rarely reveal such information.Footnote 141 However, it seems likely that advertiser influence is growing with the worsening economic environment for media outlets.Footnote 142
Finally, the public seems to have a low opinion of the media, as borne out in surveys in numerous liberal democracies.Footnote 143 Indeed, this sentiment may be increasingly shared by journalists themselves.Footnote 144
The above commentary casts doubt on the proposition that the media is radically and morally different to other types of businesses, and that it is somehow ‘deserving’ of special treatment under the Guiding Principles. Yet, the analysis in Part V indicates that the media nevertheless benefits from ‘lighter’ application of the Guiding Principles, compared to most if not all other industries.
VII. Conclusion
Media outlets can operate in ways that harm the human rights of others, both directly and indirectly. Yet the application of the Guiding Principles to the media industry seems to allow the industry to operate so as to have potentially massive detrimental impacts on human rights. While human rights, in particular the right to freedom of expression, is a great friend of the media, the media is a fickle friend of human rights. There is little evidence that media professionals and even human rights professionals agree with that speaker at the conference in Bonn, mentioned in the first paragraph of this article, who had suggested that a ‘good’ media outlet must promote human rights. My answer to the question of whether she was right has ultimately led to further questions, as outlined in this conclusion.
The Guiding Principles seem to be conceptually inadequate in dealing with the media, indicating that their ‘one size fits all’ approach is flawed. Alternatively, a further question is whether that inadequacy applies only to the media, or whether it reveals deeper flaws within the Guiding Principles. For example, the above analysis may demonstrate that the notion of ‘complicity’ in the context of the Guiding Principles is too broad with regard to the media, and maybe in other contexts too. It is not clear what the relevant societal expectations of the media might be for the purposes of Pillar 2, which may reveal underlying problems in basing a pillar on the amorphous notion of ‘expected conduct’. Perhaps it is naïve for the Guiding Principles to be expected to capture all the types of ‘harm’ to human rights which may be impacted by the media, and maybe other industries as well.
Alternatively, it may be that the nature of the media industry, with its close association with the right to freedom of expression, is such that it deserves special ‘light’ treatment under the Guiding Principles. This indicates that it is difficult to apply the Guiding Principles when companies have relevant human ‘rights’ as well as human rights ‘responsibilities’. If so, this problem likely extends beyond the media. After all, numerous jurisdictions, most notoriously the US, recognize free speech rights for companies generally.Footnote 145 Those rights extend to donations, promotion and lobbying for political causes of all kinds, including those which are hostile to various human rights. Other rights beyond free speech may also be engaged. For example, businesses might respond to calls for the implementation of human rights responsibilities by raising countervailing rights to property,Footnote 146 or the rights of their employees to work.
Kovach and Rosenstiel made the following comment on the application of the US First Amendment to the media, in light of what they saw as the increasing gap between modern news media and journalistic ideals of accuracy and independence: ‘In this world the First Amendment becomes a property right establishing ground rules for free economic competition, not free speech. This is a fundamental and epic change with enormous implications for democratic society.’Footnote 147 This comment indicates that the media might be abusing its rights of free expression, and that we should be wary of this right providing a powerful moral and legal shield from the full glare of the Guiding Principles. The same logic might apply to defeat ‘countervailing rights’ claims by other industries. If so, perhaps arguments can be mounted that human rights for companies simply cannot sit aside human rights responsibilities for those very companies. However, even if there was agreement that ‘human’ rights should not vest in companies, countervailing rights claims may still be claimed by individuals within a given business.
Furthermore, regarding the media, it is not feasible to simply ignore free speech claims. Freedom of expression of the media must be respected, despite the inevitable consequent harms to human rights. Indeed, any rolling back of free expression for the media would likely do a disservice to the considerable amount of media speech which promotes human rights. This argument indicates that there may be circumstances where the amount of ‘good’ done by an industry with regard to human rights does in fact offset the bad, contrary to the Commentary to the Guiding Principles.
While journalists should not be the mouthpieces of governments or corporations, they are not mouthpieces for human rights advocates either.Footnote 148 ‘Most journalists do not believe – correctly – that they have a duty to privilege reporting of human rights issues’.Footnote 149 Thus, very few journalists are likely to agree with the speaker at the Bonn conference.
The current invisibility of the media from the BHR arena ensures the continued irrelevance of human rights, beyond the vigorous assertion of the media’s own rights and the cursory sporadic acknowledgement of countervailing rights, to the work of one of the world’s most important and powerful industries. At the least, a conversation must be opened up between the human rights community and media representatives, including journalists, editors, proprietors, and parent company board members, to see how, if at all, human rights responsibilities can be incorporated within systems of regulation and self-regulation. This discussion takes on added importance with regard to media organizations emerging in the less mature democracies, where ideas of journalistic ethics are less entrenched. In the meantime, however, the human rights community may need to contemplate the possibility that a human rights lens, and certainly the lens currently provided by the Guiding Principles, is inappropriate for dealing with media human rights responsibilities with regard to media content.
