A LEGAL GUIDE FOR MEDIA PRACTITIONERS - PART1

A LEGAL GUIDE FOR MEDIA PRACTITIONERS - PART1 

25/10/2016

Know your Media LawKNOW YOUR MEDIA LAW

Dave Asei

Media law is one of the most complex and fastest growing areas of the law. Until fairly recently, it was not universally considered a discrete subject of study, and it was certainly not included in the syllabi of journalism or other media-related courses. The reason for this neglect was largely attitudinal: any legal problem which presented itself to a working journalist was seen as falling with the province of the professional lawyer. The bigger media outfits have always had an in-house legal adviser, and the smaller ones usually referred cases to an outside lawyer. But a combination of factors made that arrangement less than satisfactory over the years. These included: rising litigiousness in society; runaway growth in statutory and other regulatory activity; increasing complexity of the law; and an intensification of competitive pressures within the media which has led to, and in many cases actively encouraged, journalistic risk-taking on a much wider scale than had been seen in the past.

Consequently, the awareness of a need for the working journalist – and other media practitioners – to gain at least a rudimentary knowledge of the law affecting their trade (if it can be called that) began to grow. The idea of “media law” as an integral part of journalism courses or vocational training programmes soon gained currency. This branch of the law is, in fact, a slightly artificial construct: “media law” essentially consists of principles, concepts and precedents from a number of traditionally well-established areas of the law such as constitutional law, criminal law, and contract law.

As one leading expert in this field recently noted, “For an in-depth study of all aspects of media law, the practitioner would probably require at least half-a-dozen weighty textbooks.” This article does not aspire to deal with the subject exhaustively. On the contrary, it is intended simply as a first port of call for any media practitioner who wants an overview of the basic rules on such matters as defamation, contempt of court, copyright, official secrecy, individual privacy, and hate speech in the Asia-Pacific region. One of the challenges of compiling a work of even such limited scope as this is that there is a huge diversity of legal systems, principles and rules in any part of the globe which makes it impossible to offer definitive and detailed guidance on the subject. These articles should not, therefore, be treated under any circumstances as a substitute for professional legal advice. It is seldom realised that sometimes all that is required for a journalist to avoid a legal pitfall is to make minor changes to his or her copy. For example, a change in nuance can often turn a potentially defamatory sentence to something that is legally innocuous. With this in mind, you should try to keep the treatment of the various issues as practical as possible, although for the benefit of the more curious – or the more legally minded – The paper has provided relevant references to case law or other sources. I hope that these series will prove useful to media practitioners throughout Nigeria and the rest of the world and possibly further a field- Freedom of expression:

General Principles

How important is freedom of expression and its corollary, media freedom?

                                                                                       Freedom of expression is seen as being extremely important for the well being of any society. There is hardly any country in the world whose constitution does not give pride of place to this freedom. Indeed, as the Inter-American Court of Human Rights once said, Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion … It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.

The importance of this freedom was underlined by the Supreme Court of Israel in the following words: Freedom of expression is closely bound up with the democratic process. It serves not only as a means and an instrument but also as an aim in itself. Freedom of expression is a superior right which, together with the similar right to freedom of conscience, constitutes the prerequisite to the realization of almost all other freedoms. The supreme value contained in freedom of expression remains permanent and unalterable. Similar sentiments have been expressed by the Supreme Court of the United States of America. In one famous passage, Justice Cardozo of that court stated: Freedom of thought and speech ... is the matrix, the indispensable condition of nearly every other form of freedom.

What are the purposes that freedom of expression is intended to serve? Although there are many theories on the philosophical bases and practical uses of free speech, it is generally agreed that the media serve a number of essential purposes in free and open societies. The Supreme Court of India has identified four of these: (a) to help individuals attain self-fulfilment; (b) to assist in the discovery of truth; (c) to strength the capacity of individuals to participate in the democratic process in society; and (d) to provide a mechanism which will establish a reasonable balance between stability and social change in society. How far can the claims for free speech be carried by journalists?

Journalists can, and do, make strong claims for a maximalist view of free speech, which is understandable but slightly misplaced. There is a widespread consensus that freedom of expression, like all other freedoms, cannot be absolute. It has to be balanced against other equally legitimate interests in society, such as upholding public order, safeguarding national security, protecting the reputation of others, preserving the authority of the courts, and so on. For those reasons, every society imposes certain restrictions on free speech and makes its exercise conditional on the requisite degree of responsibility being shown by its practitioners. How does the law deal with freedom of expression? There is considerable variation in this area. For a start, every sovereign nation has the right to put in place its own arrangements, which includes laws, law-enforcement mechanisms and conventions, for the protection and promotion of free speech. Secondly, attitudes towards free speech are often governed by the history of a country or by its religious or cultural ethos. Some countries are, therefore, more liberal than others. Even within countries, there might be differences in the manner in which freedom of expression may be given effect to. For example, there may be local laws, based on particular circumstances, which require free speech to be regulated to a lesser or greater extent than in the rest of the country to take into account local sensitivities.

Furthermore, even an otherwise liberal society may tighten restrictions on free speech for particular periods to deal with serious emergencies which threaten public tranquillity or the security of the nation. Generally speaking, constitutional provisions on freedom of expression lay down broad principles. They underline the importance of free speech, declare freedom of expression as a basic right, and prescribe the grounds on which this right can be restricted. It is then left to more specific laws, usually passed by the legislature, to describe in greater detail the circumstances and manner in which, and the extent to which, the restrictions can be placed. Finally, the actual imposition of the restrictions is put within the domain of administrative orders, passed in most cases either by government ministers or by local officials such as commissioners of police or magistrates