International law does permit some restrictions on the right to freedom of expression and information in order to protect various private and public interests such as the reputations of others and national security.

Paragraph 3 of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), cited earlier, sets out the limited grounds on which restrictions on freedom of expression which may be permissible - that is, respect of the rights or reputations of others, and for the protection of national security or of public order, or of public health or morals. Article 29 of the Universal Declaration of Human Rights (UDHR) similarly provides for limited restrictions on rights.

Media freedom

The media play a particularly important role in safeguarding the right to freedom of expression and information. Without a free and vibrant media, the public can neither access information nor participate in the political process. In particular, the right of everyone to receive information and ideas can only be guaranteed effectively by a free media.

It is perhaps a truism to say that in the modern world the most powerful and effective information source for most people is the mass media. Whether through newspapers, magazines, the radio, television or new technologies such as the Internet, most people discover what is happening around them by reading, listening to or watching the mass media.

The media educates, informs, provides a platform for diverse opinions, entertains and should be the watchdog of government. It is through the media that most people form opinions about their society, their system of government and the individuals who govern them.

It is through the media that, for most people, the right to freedom of expression is made a reality and the media is thus a powerful force for information and opinion-forming in modern society.

In view of the importance of a free media in a democracy, a retired English judge proposed its suitability as the fourth partner in the separation of powers club if only the media was able to self-regulate itself. However, he concluded that, "The presence of the media, therefore, reinforces the importance of maintaining the strength of the judiciary... as the only element of power to balance the executive."

Principles regarding the print media

In relation to the Press, the most important principle that must be established is total independence from the government.

A number of governments around the world argue that the state must control newspapers in order to ensure that it can accurately express its views to the people it governs. This argument, however, is fundamentally flawed.

A government newspaper is, by definition, representing one sectional interest. It is likely to present its news and information in a manner biased in favour of the government and to ignore or downplay opposing viewpoints.

It must be recognised that the government is not like other sectional interests. In a democracy the government represents the people and has an obligation to promote diversity and the freedom of expression of the whole community, not to publicise its own views.

Public funds should not be used to subsidise the dissemination of the opinions of government leaders who already have significant access to the media by virtue of their positions. It should not be for the government to decide when something is newsworthy, but for the independent press.

Also, government newspapers and those supported by public funds pose a significant threat to the competitiveness of the independent press and could damage media diversity by causing 'newspaper deaths'.

In addition to the ownership and control of the press, licensing is also a problem in many countries. Unlike the broadcast media, resources for press publication are, in principle, unlimited and so, unlike the airwaves, do not constitute a limited public resource which needs to be managed by the authorities.

In these circumstances, the government has no place licensing the press. It is legitimate for governments to require newspapers to register by providing basic technical information, but licensing can be employed to enable the government to exert unacceptable political control over the content of press publications, both through directly blocking those publications of which it disapproves and by encouraging self-censorship on the part of journalists.

Prior censorship by governments is also a very serious restriction on the press. Such is the danger of such direct censorship for the right to freedom of expression that international law regards it with the deepest suspicion and one international human rights treaty, the Inter-American Convention on Human Rights, outlaws it altogether. The historical abuse of prior censorship and its potential to limit the free flow of information and ideas are clear.

The broadcast media

Considerations in relation to the broadcast media are slightly different. The broadcast media generally exerts a much more powerful influence on the public than does the press, through its wide reach, accessibility and availability.

The frequency spectrum is limited and there is a risk of interference between different broadcasters. It is for this reason that frequencies must be carefully distributed to ensure that the interests of the public generally are taken into account, including, for example, those of ethnic minorities.

International law imposes an obligation on states to ensure diversity in the media as an aspect of the right to freedom of expression. Given this obligation, and the limited resources of the broadcast media, states retain the right to set policy goals for the broadcast media.

It is vital, however, that this authority not be used by governments to promote their own interests. Government action in relation to the broadcast media must always be undertaken in the public interest and with its obligations to freedom of expression and diversity firmly in mind. As with the press, editorial and financial independence must be respected.

In some countries, the state still holds a monopoly on broadcasting services. TV and radio stations broadcast government news and avoid opposition opinions or controversial issues. In such countries, the public's right to know and to have access to a wide range of views is frustrated and curtailed. State broadcasters do not generally act in the interests of the public but promote the interests of the government.

In order to avoid this unnecessary restriction on freedom of expression and diversity, governments must allow private broadcasters to operate. Given the limited resources available to broadcasting, licensing is usually necessary and action needs to be taken to avoid private monopolies which could equally pose a threat to diversity.

Such licensing is only legitimate in the context of freedom of expression, however, when the government takes steps to ensure that licensing criteria are transparent, that licenses cannot be refused arbitrarily and that the criteria for licensing takes into account the interests of diversity, freedom of expression and the public at large rather than the interests of the government.

To ensure these safeguards, licensing is best undertaken by a body independent of the government with a licensing mandate and guarantees of independence defined in the law.

Non-partisan views

In addition to allowing private broadcasters to operate, governments should transform state broadcasters into public service broadcasters with a mandate to serve the public interest, including minority and non-commercial interests, and to provide impartial and accurate news and information.

In many countries, public service broadcasters play a vital role in ensuring that all members of the pubic have access to quality programming which concerns and interests them, especially where such programming would not be commercially viable.

Public service broadcasters also perform a vital role in providing the public with non-partisan news and information and are especially important during an election, when they have a direct obligation to depict all parties, including the government, fairly, proportionately and without bias.

Because of their link to the state, public service broadcasters have a direct obligation to ensure plurality and diversity of content and fail to fulfil this obligation if they simply support the government and disseminate only official information. The Ghanaian Supreme Court has summed up this principle well:

"The state-owned media are national assets - they belong to the entire community, not to the abstraction known as the state; nor to the government in office, or to its party. If such national assets were to become the mouthpiece of any one or combination of the parties vying for power, democracy would be no more than a sham."

This view of the Supreme Court is in direct contrast to what the Malaysian Parliamentary Secretary to the Information Ministry was reported to have said recently in response to accusations that Radio Television Malaysia (RTM) does not air comments by the opposition. He said, "You say we are biased, I accept that. But we are biased towards our own government. So what?"

In order to guarantee that the public broadcasters operate in the interests of the public rather than those of the government, they must be controlled and regulated by a body or bodies with legal guarantees of independence from the government, both in relation to policy, broadcasting mandate and financial control.

PARAM CUMARASWAMY is the United Nations Special Rapporteur for the Independence of Judges and Lawyers. He presented the above paper at a forum in conjunction with World Press Freedom Day organised by the Sin Chew Jit Poh Chinese daily recently.