I.                   
Introduction

This Briefing Note contains ARTICLE 19’s comments on a draft
Ethiopian Proclamation to Provide for the Freedom of the Press (draft
Proclamation), released by Ethiopia’s
Ministry of Information in May 2004. It has been just over a year since the
Ministry issued two drafts of a Proclamation Concerning Press Freedom (the
2003 draft Proclamations), neither of which was enacted into law.[1]
ARTICLE 19 commented on both versions of the 2003 draft Proclamations.
Regrettably, many of the shortcomings identified in 2003 have been incorporated
into the current draft Proclamation; consequently this Briefing Note repeats a
number of concerns that have already been articulated.

 

While there are some positive additions to the current draft
Proclamation – including the protection of confidential sources and a more
elaborated access to information regime – this Briefing Note will focus on the
remaining problem areas, notably:

·     
its excessively broad scope;

·     
restrictions on who may
practise journalism;

·     
government-controlled
registration and certification systems;

·     
excessively broad exceptions to
the right to access information held by public authorities;

·     
the granting of a right to
reply remedy that undermines the principle of editorial independence;

·     
the establishment of a
government-controlled Press Council with powers to prepare and enforce a Code
of Ethics;

·     
powers vested in the courts to
engage in prior-censorship;

·     
powers vested in the prosecutor
to suspend media outlets; and

·     
an excessively harsh regime of sanctions for offences that have no
defences.

 

This Briefing
Note examines the draft Proclamation against international standards on freedom
of expression, paying particular regard to these concerns. We note that we have
are a large number of concerns with the draft Proclamation; this Note is not in
any way a comprehensive analysis but, rather, sets out our main concerns. For a
more general overview of the legal framework for Freedom of Expression in Ethiopia,
ARTICLE 19 published a country report on this topic in Spring
2003.[2]

II.                 
International and
Constitutional Obligations

II.1            
International Obligations

Freedom of
expression, a fundamental human right, is protected by Article 19 of the Universal Declaration of Human Rights (UDHR),[3]
binding on all States as a matter of customary international law. Article 19 of
the UDHR states:

 

Everyone has the right to freedom of
opinion and expression; this right includes the right to hold opinions without
interference and to seek, receive and impart informa­tion and ideas through any
media regardless of frontiers.

 

The International
Covenant on Civil and Political Rights (ICCPR)[4],
which Ethiopia ratified in 1993, imposes formal legal obligations on State parties
to respect its provisions, and elaborates many of the rights included in the Universal
Declaration of Human Rights (UDHR)[5],
including the Article 19 guarantee of the right to freedom of expression. The
ICCPR, also at Article 19, guarantees the right to freedom of expression in the
following terms:

 

(1)     Everyone shall have the right to freedom of
opinion.

(2)     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 African
Charter on Human and Peoples’ Rights,[6]
which Ethiopia ratified in 1998, guarantees the right to freedom of
expression in Article 9 as follows:

 

(1) Every individual shall have the right to receive information.

(2) Every individual shall have the right to express and disseminate
his opinions within the law.

 

The African
Commission on Human and Peoples’ Rights, meeting at its 32^nd
Ordinary Session, from 17^th to 23^rd October 2002, adopted the Declaration of Principles of Freedom of Expression
in Africa, which elaborates on Article 9 of the African Charter, setting
out a number of principles and standards on freedom of expression issues. It
provides: “State parties to the African Charter on Human and Peoples’ Rights
should make every effort to give practical effect to these principles.”[7]

 

Freedom of expression is also protected by
other regional human rights instruments, including Article 10 of the European
Convention on Human Rights (ECHR),[8]
Article 13 of the American Convention on Human Rights[9]
and Article 11 of the Charter of Fundamental Rights of the European
Union.[10]
These instruments, and the manner in which they have
been interpreted and applied by regional bodies are not binding on Ethiopia.
Nonetheless, they are authoritative elaborates of the content and scope of
international guarantees of freedom of expression, including Article 19 of the
UDHR, which Ethiopia has incorporated into its Constitution (see below). As a result,
they are persuasive evidence of the scope of the right to freedom of expression
for Ethiopia.

II.2            
Ethiopia’s
Constitutional Obligations

Article 29 of the Federal Constitution guarantees right of thought,
opinion, freedom of expression and the press in the following terms:

 

1.Everyone has the right to hold opinions without interference.

2.Everyone has the right to freedom of expression without interference. 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 media of his choice.

3.Freedom of the press and other mass media and freedom of artistic
creativity is guaranteed. Freedom of the press shall specifically include the
following elements:

a) Prohibition of any
form of censorship

b) Access to
information of public interest.

4. In the interest of
free flow of information, ideas and opinions which are essential to the
functioning of a democratic order, the press shall, as an institution, enjoy
legal protection to ensure its operational independence and its capacity to
entertain diverse opinions.

5. Any media financed
by or under the control of the state shall be operated in a manner ensuring its
capacity to entertain diversity in the expression of opinions.

6. These rights can be
limited only through laws which are guided by the principle that freedom of
expression and information can not be limited on account of the content or
effect of the point of view expressed. Legal limitations can be laid down in
order to protect the well being of the youth, and honour and reputation of individuals.
Any propaganda for war as well as the public expression of opinion intended to
injure human dignity shall be prohibited by law.

7. Any citizen who
violates any legal limitations on the exercise of these rights may be held
liable under the law.[11]

 

The Constitution
further provides: “All international agreements ratified by Ethiopia are an
integral part of the law of the land,” and that: “The fundamental rights and
freedoms specified in this chapter [chapter 3 of the constitution on
fundamental rights and freedoms] shall be interpreted in a manner conforming to
the principles of the Universal Declaration of Human Rights, International
Covenants on Human Rights and international instruments adopted by Ethiopia.”[12]

 

While the
constitutional guarantee of freedom of expression and freedom of the press is
welcome, ARTICLE 19 has concerns with the specific manner in which it is
phrased.

 

Article 29(3)(b) guarantees, “access to information of public interest.”
It does not define “public interest” and it will presumably be up to the
authorities, at least in the first instance, to decide on what information is
of public interest and what is not. This term is susceptible to wide
interpretation, creating a window for potential abuse and denial of access to
information.

 

It is recognised under international law
that access to information is a fundamental component of the right to freedom
of expression. There should be a strong presumption in favour of access to
information subject only to clearly defined exceptions established by law. Any
limitation on this right must meet the conditions imposed by Article 19(3) of
the ICCPR (see below). In particular, such limitations must be clearly and
narrowly defined. The term ‘public interest’ does not meet this s standard.
Furthermore, what the authorities deem to be of public interest is not a
legitimate limitation to the right of access.

 

Article 29(5)
requires “media financed by or under the control of the government” to be
operated in a manner that ensures diversity of views. It is implicit in this
constitutional provision that the government will continue to own and control
media outlets. While the provision may appear to promote diversity of views,
the indirect constitutional legitimisation of the State’s control over the media
is contrary to the established principle that State broadcasters must be
transformed into public service broadcasters. This is clearly affirmed by
Principle 6 of the African Commission Declaration
of Principles on Freedom of Expression in Africa, which states:

 

State and government
controlled broadcasters should be transformed into public service broadcasters,
accountable to the public through the legislature rather than the government…

 

The same
Principle further provides a set of principles on the transformation of State
broadcasters to public service broadcasters, including the following:

 

Ø     public broadcasters should be governed by a board which is protected
against interference, particularly of a political or economic nature;

Ø     the editorial independence of public service broadcasters should be
guaranteed and

Ø     public broadcasters
should be adequately funded in a manner that protects them from arbitrary
interference with their budgets.

 

ARTICLE 19
recommends that Article 29(5) of the Constitution be amended. It should be
replaced by a provision that affirms the transformation of State broadcasters
into public service broadcasters, and which guarantees the organisational and
operational independence of these bodies.

 

Article 29(6)
provides that “any propaganda for war as well as the public expression of
opinion intended to injure human dignity” shall be prohibited by law. While the
former is consistent with Article 20(1) of the ICCPR, the latter prohibition
appears to go beyond what is permitted under international law. Article 20(1)
of the ICCPR provides for the prohibition by law of war propaganda. Protection
for reputation, as provided for by defamation laws, is an extremely complex
area of law. ARTICLE 19, for example, has developed a whole set of principles
exclusively on this issue.[13]
There is a great risk that a simple, vague constitutional provision of this
sort will be abused. For example, much legitimate political campaigning will be
intended to injure human dignity. The exposure of corrupt practices may also be
said to fall foul of this constitutional rule, even though it is of some public
importance.

 

Article 29(6) also provides that limitations can be laid down in law
in order to protect the well being of the youth and the honour and reputation
of individuals. These are undoubtedly legitimate aims for restricting freedom
of expression but, once again, these provisions fail to place conditions on the
scope of these limitations, which is necessary to ensure that they are not
abused. In particular, they should be required to be necessary in a democratic
society for protecting these interests. In this regard, the Constitution fails
to conform to international standards.

 

Recommendations: ·        In Article 29(3)(b) of the Constitution, either the phrase “public interest” should be deleted or its scope should be clarified. ·        Article 29(5) should be replaced by a provision affirming the need to transform government media into independent public service media, and to guarantee the organisational and operational independence of these media. ·        The provisions in Article 29(6) should be amended to require any restriction on freedom of expression to be justified as necessary in a democratic society.

II.3            
Legitimate Restrictions on Freedom
of Expression

Most treaty bodies and an increasing number
of national courts apply a common standard in assessing the legitimacy of any
restriction to freedom of expression and the right to information. According to
this standard, any restriction must satisfy a strict three-part test. The test
requires that restrictions be: (1) prescribed by law; (2) satisfy a legitimate
aim as articulated under international law; and (3) be necessary. Article 19(3)
of the ICCPR sets out the test in the following terms:

 

The exercise of the
rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:

(a) For respect of
the rights or reputations of others;

(b) For the protection of national security or of public order (ordre
public), or of public health or morals.

 

Paragraphs (a) and (b) of the above
provision set out the legitimate aims recognised under international law.

 

To be “provided by law” implies
not only that the restriction is based in law but also that the relevant law
meets certain standards of clarity and accessibility. Further, the legitimate
interests listed in the ICCPR are not illustrative but are rather exhaustive:
national governments may not expand on this list. Finally, the third part of the test, the requirement of
necessity, means that even where measures seek to protect a legitimate
interest, the government must demonstrate that there is a “pressing social
need” for the measures; moreover, the restriction must be propor­tion­ate to
the legitimate aim pursued and the reasons given to justify the restriction
must be relevant and sufficient.[14]

II.4            
Freedom of Information

The draft Proclamation contains an entire
Part devoted to ensuring the right to access publicly held information. Freedom
of information is an important component of the internationally guaranteed
right to freedom of expression, which includes the right to seek and receive,
as well as to impart, information and ideas of all kinds regardless of
frontiers. Indeed, the Ethiopian Constitution guarantees the right to
information in the same provision as it guarantees freedom of expression.

 

The Declaration of Principles on Freedom of
Expression in Africa affirms the principle that everyone has a right to
access information held by public bodies, subject only to clearly defined rules
established by law. Further, the Declaration also provides the following list
of principles regarding how national laws should guarantee the right to access
information:

 

Ø     everyone has the right to access information held by public bodies;

Ø     everyone has the right to access information held by private bodies
which is necessary for the exercise or protection of any right;

Ø     any refusal to disclose information shall be subject to appeal to an
independent body and/or the courts;

Ø     public bodies shall be required, even in the absence of a request,
actively to publish important information of significant public interest;

Ø     no one shall be subject to any sanction for releasing in good faith
information on wrongdoing, or that which would disclose a serious threat to
health, safety or the environment save where the imposition of sanctions serves
a legitimate interest and is necessary in a democratic society; and

Ø     secrecy laws shall
be amended as necessary to comply with freedom of information principles.[15]

 

As with
expression, international law recognises that the right to information is not
absolute. Nonetheless, restrictions on it must be narrowly circumscribed and
meet the same three-part test described in the section above. Critical to an
understanding of this test in the specific context of freedom of information is
the meaning of “necessary”. At a minimum, a restriction on access to
information is “necessary” for securing a legitimate interest only if (1)
disclosure of the information sought would cause substantial harm to the
interest (also known as a harms test) and (2) the harm to the interest caused
by disclosure is greater than the public interest in disclosure.[16]
Thus, even if it can be shown that disclosure of the information would cause
substantial harm to a legitimate aim, the information should still be disclosed
if the benefits of the disclosure outweigh the harm.[17]

III.               
Analysis of the Draft
Proclamation

III.1                      
Scope of the Draft Proclamation

The scope of the
draft Proclamation is excessively broad, including any and every form of mass
communication, regardless of the means of transmission or the frequency of
publication. We made the same criticism of the 2003 draft Proclamations. The
current draft, in Article 2, includes the same, broad definitions of the
“press” and “printed matters”. Thus, the draft Proclamation will apply to all
print publications, large or small, as well as plays, films, cartoons, books,
leaflets and even posters and pictures, as well as to all broadcasters and
Internet publications. This broad scope is particularly problematic since
different media operate in different ways. A leaflet with a print-run of only
fifty cannot be compared to a large national newspaper, yet the draft
Proclamation applies the same licensing and registration schemes to both. For
this reason, similar legislation emanating from Belarus
has recently been held by the UN Human Rights Committee to be incompatible with
the right to freedom of expression.[18]

 

Similarly, the
definition of “advertisement” is over-broad, the determinative criterion being
that the press derives, either directly or indirectly, “financial or other
benefit” from it. Since the concept of non-monetary benefit is not capable of
precise definition, virtually any form of information published by the media
could be deemed to constitute an “advertisement”. A public service announcement
could conceivably constitute an advertisement under this definition. Even
breaking news could be considered to ‘benefit’ a media outlet.

 

The definition
of “journalist association” actually contains a restriction on membership – no
persons who owns or has a “substantial” proprietary interest in a press
organization, or who is involved in management of a press organization may join
– and thus constitutes government interference with the right to freedom of
association.

 

Recommendation: ·        The scope of the draft Proclamation should be restricted to large-scale, periodical, print media outlets. ·        The definition of “advertisement” should be restricted to material that brings the press financial benefits of the equivalent. ·        The draft Proclamation should not seek to impose restrictions on membership of journalists’ associations.

III.2                      
Restrictions on Who May Practise
Journalism

Article 5(1) of the draft Proclamation imposes significant
restrictions on who may work in the press field. Individuals who are not
Ethiopian citizens and residents, who have not attained 18 years of age or who
have been deprived of their legal rights may not work as journalists.
Additionally, no person may work in broadcasting who has been stripped of his
parental authority or who has been accused, but not necessarily punished, of a
serious crime or offences against good conduct and the family. Article 5(3)
imposes restrictions on who may be on the board of management of a print
publication. This provision is essentially unchanged from similar restrictions
contained in the 2003 draft Proclamations.

 

It is well
established that conditions on who may practise journalism are inconsistent
with the guarantee of freedom of expression, which grants everyone, regardless
of their situation, the right to engage in expressive activities.

 

Article 7 of the
draft Proclamation imposes a licensing requirement on individual journalists.
Like restrictions on who may practise journalism, registration requirements for
individual journalists are not legitimate. It may be noted that very few
countries around the world, including in Africa, require such registration,[19]
and that the Declaration of Principles on Freedom of Expression in Africa
rules out licensing regimes for individual journalists.[20]

 

Recommendations: ·        The draft Proclamation should not impose restrictions on who may practise journalism. ·        The draft Proclamation should not require individual journalists to register.

III.3                      
Licensing of Media Outlets and
Distributors

The licensing
regime for media outlets imposed by this draft Proclamation is essentially
unchanged from the 2003 draft Proclamations. The main provision for dealing
with the media in this new version is Article 9, which requires all media
outlets to obtain a licence from the Ministry of Information. Applicants must
provide extremely detailed information, including the names, addresses, date of
birth and employment contract of all journalists working for the media outlet,
as well as the schedule of publication, and the time, method and places of
distribution. The authorities must be notified of all changes to this
information.

 

Pursuant to
Article 9(4) an application can be rejected due to an applicant’s failure to
meet any of the requirements set out in the entire draft Proclamation, which
are much broader than the already excessively broad grounds for refusal set out
in Article 10.

 

Article 9(8) states
that the fee for registration and renewal, and the time limit for which the
registration will be valid, will be determined by the Ministry of Information.

 

Article 10 sets out grounds according to which a licence may be
refused, including where the applicant fails to adhere to the obligations
stipulated throughout the draft Proclamation.
Many of these obligations consist of vague content restrictions.

 

Article 8
requires anyone engaged in the wholesale distribution of printed matters to be
licensed by the Ministry of Information or by the Regional Information Bureau.

 

Under
international law, technical registration
requirements for the print media,
properly defined as mass circulation, periodical publications, do not, per se, breach the guarantee of freedom
of expression as long as they meet the following conditions:

• there is no discretion to refuse
  registration, once the requisite information has been provided;
• the system does not impose
  substantive conditions upon the media;
• the system is not excessively
  onerous; and
• the system is administered by a body, which is independent of
  government.

 

However,
registration of the print media is unnecessary and may be abused, and, as a
result, is not required in many countries. ARTICLE 19 therefore recommends that
the print media not be required to register. Indeed, as noted in the Joint
Declaration of the Special Rapporteurs:

 

Imposing special registration requirements
on the print media is unnecessary and may be abused and should be avoided.
Registration systems, which allow for discretion to refuse registration, which
impose substantive conditions on the print media or which are overseen by
bodies, which are not independent of government, are particularly
problematical.[21]

 

Different
considerations apply to broadcasting, where licensing may be legitimate.

 

The registration
system established under the Law dramatically fails to meet any of the minimum
conditions noted above and, as a result, breaches the right to freedom of
expression.

 

First, the
grounds upon which a licence may be refused are broad and allow for wide
discretion. To this extent, it is a licensing system, not a registration
system. Among other things, the provisions on time limits and fees permit the
Ministry of Information to exercise an excessive amount of discretion that can
be used to “punish” certain media or favour others. The registration and
renewal fee should be limited to covering the costs associated with
administering the system and they should be set out in the law or in
regulations. The duration of registration should also be set out in the law or
in regulations, and should be the same for all media of a similar format.

 

Second, the
system imposes substantive conditions upon the media, including a number of
vague content restrictions that cannot, in any case, be justified under
international law. Third, the system is extremely onerous in the breadth of
information that must be provided.

 

Finally, the
Ministry of Information oversees the licensing system, which is contrary to the
requirement under international law that the press be independent of
government.

 

Article 8,
requiring distributors to be licensed does not serve any legitimate need and
the measure appears to be designed to increase government control over this
function. As such, it is incompatible with the right to freedom of expression –
which protects the dissemination of information as well as its production – and
should be removed from the draft Press Law.

 

Recommendations: ·        The licensing system for the media should either be abolished altogether or be transformed into a purely technical registration scheme, in line with the standards noted above. ·        The licensing system for wholesalers of printed matter should be abolished.

III.4                      
Exceptions to the Right to Access
Information

ARTICLE 19
welcomes the inclusion in Part III of the draft Press Law of a system for
ensuring access by all citizens, not just journalists, to information held by
public authorities. This Part has been improved upon from the 2003 draft
Proclamations. We still recommend that this be treated separately, in an specific freedom of information law, but the new approach
is much better than that found in previous drafts.

 

Article 12 sets
out the basic right and Article 13 requires public bodies to publish key
information. Article 14 describes the process for obtaining information.
Article 14(6) lists circumstances in which the responsible public relations
officer may reject requests, including that the request is too general or
“would involve disproportionate diversion of human and material resources or
would adversely interfere with the functioning of the authority.” This is not a
legitimate ground to refuse an information request; providing access must be
viewed by public bodies as part of their day-to-day operations. If a request is
too general, public relations officers should be required to assist requesters
to make them more specific. If requests are large, a time extension might be
available to deal with this. The request should, however, be addressed.

 

Public bodies have
no more than 30 days to comply with requests. Article 14(7) provides for an
extension of this period to 60 days under certain circumstances. The law should
require that public information officers inform applicants if an extension is
being exercised. Also, the law should state that failure to respond to a
request within the prescribed time frames shall be treated as a deemed refusal.

 

Articles 15 to
29 set out the exceptions to the right of access. Article 15(1) states that a
public information officer will refuse a request for access or a request to
ascertain the existence of a record if the information sought falls under a
number of the categories of exceptions found in Articles 16 to 29. The purpose
of this provision is unclear but it appears to be redundant and is not subject
to either a harms test or a public interest override.

 

Article 15(2)
provides that the access regime is subject to prohibitions contained in other
laws. This seriously undermines the right of access by making it inferior to
the whole range of secrecy laws, many of which were adopted some time ago and
which do not reflect the principles of access, which underpin the new law.

 

Some of the
other exceptions are uncontroversial, being sufficiently narrowly and well
defined. For example, Article 16 prohibits the disclosure of personal
information unless the information is already publicly available, if it
concerns a public official, if the individual is deceased or if the individual
has consented to the release. These are important limits to the exception.

 

However, certain
exceptions do not protect legitimate interests. For example, Article 26(2)
prohibits the disclosure of information about an international trade agreement.
As clearly demonstrated by international public reaction to the recent
international trade talks, this type of information is very relevant to the
general public interest and should not be kept secret. It may be legitimate to
have a more narrowly phrased exception in favour of protecting international
relations. Another illegitimate restriction is found at Article 27, regarding
the protection of research data.

 

While many of
the exceptions require that the disclosure must cause harm, for example
“serious disadvantage”, before a refusal may be justified, the harms test is
not built into each provision. This leads to inconsistency and unpredictability
within the regime, since some of the exceptions overlap. For instance, it is
conceivable that the same piece of information regarding the operations of a
public body could be caught by Articles 26, 27 and 28. Article 27 contains a
harms test but Articles 26 and 28 do not.

 

Finally, none of
the provisions is subject to a public interest override.

 

A positive
element of the draft Proclamation’s access to information regime is the
provision for an appeals mechanism, at Article 31. However, the actual appeal
process is insufficiently articulated and the court is not given adequate
investigative powers. Furthermore, courts may not review the exception in
Article 15, which, as discussed above, is unduly broad.

 

Article 32
provides that the public information officer of each public body must submit an
annual report to the relevant minister regarding how the body has implemented
the provisions of Part III of the draft Proclamation. This report should also
be disclosed to the public.

 

Recommendations: ·        Articles 15(1) and (2) should be removed from the draft Proclamation. ·        Laws that are inconsistent with the access to information regime should be amended or repealed. The regime of exceptions provided for in the draft Proclamation should be comprehensive and other laws should not be permitted to extend it. ·        All exceptions to disclosure should be subject to both a strict harms test and a public interest override. ·        Redundant and illegitimate exceptions should be removed from the law. ·        Courts hearing an appeal against a refusal to disclose information should be granted more extensive powers of investigation (including to summon witnesses and to view documents) than the draft Proclamation currently provides. ·        Public bodies should be required to disclose their annual reports on implementation of the access regime to the public, not just to the relevant minister.

III.5                      
Content Restrictions

The draft
Proclamation contains various provisions that are prescriptive with regard the
content of what may be published and what the objectives of press organisations
should be. Article 4 states that the goal of all Ethiopian
press should be, “ensuring the basic freedoms and rights enshrined in the
constitutions, the prevalence of peace, democracy, justice and equality, as
well as accelerating social and economic development.” Article 4(2)
prescribes further working methods for the press. Article 40 states that the
press has a duty to ensure that any information published is free from content
that may give rise to legal liability.

 

The draft
Proclamation also imposes various conditions on the dissemination of foreign
press. Specifically, the Minister of Information may suspend the circulation of
foreign media that “spreads false accusations”, amongst other content-related
rules (Article 6(3)(b)). Generally, Article 6 allows
only those foreign publications to be imported “which would directly or
indirectly have benefits to the welfare and development of the nation”.

 

ARTICLE 19 is
opposed in principle to legal measures that prescribe the working methods of
the media, or legal provisions requiring all news to be truthful. The media
should be free to organise its internal working arrangements. Furthermore,
goals of publications should not be prescribed, as this may be open to abuse on
the grounds that a publication did not have these goals. Similarly, legal
requirements requiring media to check the truthfulness of what they seek to
publish are inappropriate. These matters are properly addressed in professional
guidelines. In any event, it is well established that the nature of the
newsgathering process means that the media may make mistakes. As the European
Court of Human Rights has stated:

 

[N]ews is a perishable commodity and to
delay its publication, even for a short period, may well deprive it of all its
value and interest.[22] (para. 60)

 

For this reason,
the Zimbabwean Supreme Court struck down legislation restricting the
publication of ‘false news’.[23]

 

This does not
imply that the media should not be subject to appropriate laws that restrict
content, such as civil defamation laws. However, legitimate content
restrictions should be provided for in laws of general application. Specific,
usually repetitive, restrictions on the media such as provided in Article 19 of
the draft Press Law effectively give the media a double warning of what is
prohibited, and exert a chilling effect on freedom of expression.

 

Finally, there
is no legitimate reason to restrict the dissemination of foreign publications
as envisaged by Article 6. Article 19 of the ICCPR guarantees the right to
freedom of expression “regardless of frontiers”. It is not for the authorities
to determine whether or not a foreign publication is for the benefit of the nation;
rather, anyone who wishes to purchase a foreign publication should be permitted
to do so. Breach of rules of general application by the foreign media should be
deal with as for other publications.

 

Recommendations: ·        All content restrictions should be removed from the draft Proclamation. ·        The draft Proclamation should not seek to regulate the working methods of the media. ·        There should be no restrictions on the dissemination of foreign publications.

III.6                      
Rights of Reply and Correction

Article 37 of the draft Proclamation grants
individuals “reported in a press” an expansive right of reply and correction.
The right of reply is a highly disputed area of media law. Some see it as a
low-cost, low-threshold alternative to expensive lawsuits for defamation for individuals
whose rights have been harmed by the publication of incorrect factual
statements about them; others regard it as an impermissible interference with
editorial independence.

 

Advocates of
media freedom, including ARTICLE 19, generally suggest that a right of reply
should be voluntary rather than prescribed by law. In any case, certain
conditions should apply:

 

• The
  reply should only be in response to statements which are false or
  misleading and which breach a legal right of the claimant; it should not
  be permitted to be used to comment on opinions that the reader or viewer
  doesn’t like.
• It
  should receive similar prominence to the original article or broadcast.
• It
  should be proportionate in length to the original article or broadcast.
• It
  should be restricted to addressing the incorrect or misleading facts in
  the original text and not be taken as an opportunity to introduce new
  issues or comment on correct facts.
• The media should not be required to
  carry a reply, which is abusive or illegal.

 

The right of reply should be clearly
distinguished from a right of correction. A right of correction is limited to
pointing out erroneous published information, with an obligation on the
publication itself to correct the mistaken material. A right of reply, on the other
hand, requires the publication to grant space to an individual whose rights
have been harmed, to ‘set the record straight’. As such, it is a clearly a far
more intrusive interference with editorial freedom.

 

The right granted by the draft Proclamation
is not limited to correcting erroneous facts, which breach a legal right of the
claimant. Furthermore, the reply can be twice the length of the original piece
and editors are not granted any grounds for refusing to publish a reply – for
instance, that it introduces new allegations or arguments beyond the scope of
the original publication.

Article 37 also fails to refer to Article 11, which empowers the
editor-in-chief to refuse to publish anything against his will. According to
that provision, “any practice or agreement that restricts this power shall be
null and void.”

 

Recommendations: ·        The right of reply, as provided for in Article 37, should be substantially amended to conform to the standards noted above. ·        The relationship between Articles 11 and 37 should be clarified.

III.7                      
The Press Council

Article 38 of
the draft Proclamation provides for the establishment of a Press Council and is
substantially unchanged from the equivalent provision (Article 20) of the 2003
draft Proclamations. The Council has a mandate to make recommendations
regarding the press, as well as to prepare and entertain complaints regarding a
Code of Ethics. The 29 members of the Council will be drawn from the federal
government, associations of journalists, journalists, publishers and society at
large. The extent of government control over this body is clear from the fact
that the powers and responsibilities of the Council, the appointment of members
and the working procedure will all be determined by the Council of Ministers.

 

ARTICLE 19 is of the view that the best way to promote
professionalism in the media is through self-regulatory mechanisms. Statutory
bodies are always at risk of political interference and abuse. However, we
recognise that in some contexts, self-regulation is not in practice realistic.
Regardless of the system adopted, any bodies with regulatory powers over the
media must be fully independent of government, a condition clearly not met as
regards the Press Council. We are also concerned that the number of members, namely
29, is so large as to undermine the effectiveness of this body.

 

Recommendation: ·        Consideration should be given to removing the provisions relating to the establishment of the Press Council altogether from the draft Proclamation. If the idea of a statutory Press Council is retained, it should benefit from effective guarantees against political interference, including in relation to the manner in which members are appointed.

III.8                      
Impounding or Destruction of Press
Materials

Article 44 of the draft Proclamation gives the prosecutor the power,
where he or she believes that a media outlet is about to disseminate
information that is illegal and will cause serious damage, to impound the
printed matter. According to the draft Proclamation, impounding is synonymous with
destruction. Article 44(4) provides for an expedited process before the courts
where such an order has been made, whereby an appeal will be decided within 48
hours.

 

The 2003 draft Proclamations granted prosecutors the power to
suspend media operations. The Briefing Note we prepared to address those draft
Proclamations criticized the allocation of such power on the grounds that
suspension is, second only to license revocation, the most serious penalty that
can be imposed on a media outlet. Impounding and destruction of the published
material is almost as serious and oppressive. Such measures constitute the
worst form of prior censorship, a restraint on freedom of expression, which has
historically been open to abuse and must be regarded with extreme suspicion.

 

Although prosecutors are required “notify” the court of their
intention to issue an order to impound, and the courts are then supposed to
decide whether there are sufficient grounds for the order, this notification
process does not adequately safeguard freedom of expression.

 

International and national courts alike are reluctant to impose
prior restraints on publication without first being satisfied that the threat
posed by publication far outweighs both the publisher’s right to freedom of
expression and the public’s interest in receiving the information. Courts in
the United Kingdom, for example, have affirmed the principle that a high standard must
be met before interlocutory injunctions may be granted, even by courts. In British
Data v. Boxer Removals, a case dealing with allegedly defamatory material,
the Court of Appeal held that when applying for a quia timet injunction
(seeking to delay original publication), plaintiffs must set out with
“reasonable certainty” the allegedly defamatory words; “normally this will
require the pleading of the actual words or words to the same effect.”[24]
Although this is a high standard which will often be difficult to meet before
publication, it was justified by the need for the defendant to “know the case
that he has to meet” and the importance of freedom of expression.[25]
Clearly, even greater safeguards are required where prior censorship powers are
exercised by prosecutors.

 

In Dichand and Others v. Austria,[26]
the European Court of Human Rights ruled that an injunction to prevent
further publication of an article containing an accusation of conflict of
interest constituted an unjustifiable restriction on the applicants’ freedom of
expression.

 

Recommendation: ·        Article 44 should be removed from the draft Proclamation. At a minimum, it should be amended to specify that impounding of newspapers may only be undertaken upon obtaining a court order and after very stringent conditions have been met.

III.9                      
Sanctions

The draft
Proclamation (Part 6), like its predecessors, provides for possible
imprisonment for several breaches of the law, for terms of up to five years.
These include breaches for even minor offences such as employing journalists
who do not meet the conditions specified in the law, already noted as
illegitimate, breach of the licensing rules for media outlets, failure to
publish a reply or dissemination of banned foreign publications. Imprisonment
is a very serious sanction which should be applied, if ever, only in the very
most extreme cases. The grounds for imprisonment under the draft Proclamation
are far too broad and fail to take into account the seriousness of this
penalty.

 

The draft
Proclamation also provides for serious financial penalties to be imposed that
are disproportionate to the nature of the offences. For example, pursuant to
Article 47(11), an editor who fails to notify the Minister of changes to
registration information can be fined 1,000 to 3,000 birr (approximately USD
115-345).[27]
Also problematic is the failure of some provisions to specify the amount of the
fine, thus creating uncertainty and the potential for abuse of discretionary
powers.

 

Recommendations: ·        The regime of sanctions under the draft Proclamation should be reconsidered with a view to removing the possibility of imprisonment and suspension of publications; disproportionate financial penalties should also be removed and the possibility of warnings should be introduced. ·        Provisions where the amount of the fine are not specified should be amended to set specific amounts.