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International Law Perspectives on the Challenge Facing the Nigerian Media ¹
by Toby Mendel ²

Introduction The title of this presentation may at first blush seem a reasonable topic for a presentation of this length. However, once one realises the vast array of what are rather euphemistically referred to as "challenges" facing the Nigerian media, the task appears more daunting. This is reflected in the topics to be addressed by the working groups, which cover almost every imaginable regulatory issue.

As a result, I shall restrict my comments to outlining the general nature of Nigeria's obligations regarding freedom of expression under international law and to noting a few of the consequences for the media which flow from these obligations. I will not address the many forms of crude harassment and interference that the Nigerian media have been subjected to in recent years - such as arbitrary detention of journalists, torture, banning and seizing newspapers by decree, and unfair trials. I believe the illegality of these actions is reasonably clear.

Nigeria is a party to both the International Covenant on Civil and Political Rights (ICCPR) and the African Charter on human and Peoples' Rights. Both of these instruments guarantee the right to freedom of expression, the former at Article 19 and the latter at Article 9. The full text of these provisions can be found in the Workshop materials. As the guarantee in the ICCPR is more detailed and has also been the subject of more detailed interpretation, my remarks will focus primarily on it.

Restrictions on Freedom of Expression It may seem a bit odd for a human rights activist to start by talking about restrictions on rights. I take it as a given that this audience needs no reminding of the importance of freedom of expression, both in its own right and as an essential underpinning of democracy. The constant reiteration of this by courts, international bodies and distinguished individuals has become almost a mantra.

The purpose of this conference, however, is to assess the present restrictions on freedom of expression in Nigeria and to determine a strategy for addressing those which are oppressive or illegitimate. I this it is appropriate, therefore, to take as my starting point the extent to which international law allows restrictions on freedom of expression.

Freedom of expression is one of those rights which, unlike for example freedom from torture, is subject to a number of exceptions. This is in some ways problematical as it means that a form of balancing must be undertaken when assessing whether a given restriction falls within the scope of permissible exceptions. International bodies, however, have outlined a clear 3-part test which any restrictions on or interference with freedom of expression must meet. It may be noted that as a matter of law, it is for the State to justify these restrictions, not for citizens to prove that they are excessive.

The test, which flows clearly from the wording of Article 19 of the ICCPR and from views published by the UN Human Rights Committee, requires that any restriction must: a) be provided for by law; b) be required for the purpose of safeguarding one of the legitimate interests noted in Article 19(3); and c) be necessary to achieve this goal. It is clear that the proper approach to evaluating a particular restriction is not to balance the various interests involved but to ascertain whether the restriction meets this strict test.

The first part of the test means State interference with freedom of expression cannot be legitimate unless it is specifically provided for by law. Restrictions must be accessible and foreseeable and "formulated with sufficient precision to enable the citizen to regulate his conduct". Acts by the authorities which interfere with media freedom but are not specifically sanctioned by law, are unacceptable. Second, freedom of expression may be restricted only to safeguard one of the limited list of legitimate interests in Article 19(3), namely respect of the rights or reputations of others, and for the protection of national security or of public order (ordre public), or of public health or morals. Measures restricting freedom of expression which have been motivated by other interests, even if these measures are specifically provided for by law, do not meet the test.

Perhaps, the most important part of the test, and the one upon which most restrictions founder, is the requirement of necessity. Although absolute necessity is not required, this requirement sets a high standard which restrictions must meet. Courts around the world have elaborated on this test when assessing restrictions on freedom of expression. In balancing freedom of expression and other legitimate interests, the Supreme Courts of both Zimbabwe and Canada, for example, look at three factors. First, the objective must be of sufficient importance to warrant limiting a fundamental right. Second, the measures must be rationally connected to the objective, in the sense that they are carefully designed to achieve that objective. Third, the measures must impair the right as little as possible, in the sense that there is not less intrusive means of protecting the legitimate interest. In other words, restrictions which are not clear and narrow, or which do not serve a legitimate aim, cannot be justified.

Regulation and Control over the Media

Independence One of the most important principles to flow from the guarantee of freedom of expression - which I shall refer to as the principle of independence - is that the media should be strictly independent of government control. The rationale behind this principle is clear. If governments exercise control over the media or regulatory bodies, the media will be unable to fulfill their dual mandate of informing the public and acting as "watchdog" of government. In addition, it is clearly unacceptable for government to use public funds for their own propaganda purposes and it is only through strict guarantees of independence that this can be prevented.

The most important consequence of the principle of independence is that regulatory bodies and media outlets, even if State-funded, must be strictly independent of government control. This applies broadly and includes regulatory and licensing bodies - whether in relation to private broadcasters, public broadcasters or newspapers - media outlets - whether broadcast or print - any statutory professional bodies, news agencies, printing houses and newspaper distributors. The principle also means that government action which directly affects the media should be as free as possible from political influence. For example, the placing of advertisements by authorities should be made on the basis of independent professional criteria rather than political favouritism. The principle also includes editorial independence, which means the right of journalists and editors to make decisions on the basis of professional criteria, free of government interference.

The principle of independence finds wide support from both international bodies and national courts. The Human Rights Committee, for example, in its commentary on Article 19 of the ICCPR, states: "effective measures are necessary to prevent such control of the media as would interfere with freedom of expression." In a Communication from Nigeria, the African Commission on Human and Peoples' Rights held that a registration process for newspapers which was effectively controlled by the government and which left wide discretion to refuse registration was a breach of the right to receive information. Discussing a regulatory body which was effectively appointed by the responsible minister, the Supreme Court of Sri Lanka noted: "[T]he authority lacks the independence required of a body entrusted with the regulation of the electronic media which, it is widely acknowledged on all hands, is the most potent means of influencing thought."

In relation to State-funded broadcasters, the Committee of Ministers of the Council of Europe notes "that the independence of the media, including broadcasting, is essential for the functioning of a democratic society," and sets out guidelines including: "The legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy ..." The same idea is reflected in comments by the Ghanaian Supreme Court: "[T]he 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 mouth-piece of any one or combination of the parties vying for power, democracy would be no more than a sham." The need for independence is also noted in ARTICLE 19's principles on broadcasting.

The independence of regulatory bodies can be ensured in a number of ways, in particular focusing on the appointments process to these bodies and rules relating to individual members. Approaches which have been used in many countries include, in relation to the former: open processes that ensure transparency and participation, broad consultation with affected individuals and groups, nominations and appointments processes governed by separate bodies, a requirement that the membership as a whole be representative of the society and super-majorities for ratification of nominees to ensure all-party input. Civil society organisations and the parliament should be responsible for nominations and appointments rather that government officials or ministers. Individual members should be governed by strong conflict of interest rules, need professional qualifications, have guaranteed tenure except in narrowly specified circumstances and be sufficiently remunerated.

Pluralism The guarantee of freedom of expression also places an obligation on States to promote pluralism within the media. The European Court of Human Rights stated: "[Imparting] information and ideas of general interest ... cannot be successfully accomplished unless it is grounded in the principle of pluralism." The Inter-American Court has held that freedom of expression requires that "the communication media are potentially open to all without discrimination or, more precisely, that there be no individuals or groups that are excluded from access to such media."

The obligation to promote pluralism has a number of implications, a few of which I would like to highlight as particularly relevant to Nigeria. First, licensing decisions for private broadcasters should be made on the basis of pre-established, published criteria which include the promotion of pluralism and access to the airwaves. The airwaves are a public resource and frequency allocation should take this into account. Second, if governments insist on imposing registration requirements for newspapers - which in my opinion they should not - this should be a purely formal system which does not grant the authorities any discretion to refuse registration. Third, it is by now well-established that mandatory licensing for journalists cannot be justified under international law. Indeed, this was the specific matter at issue in an advisory opinion in which the Inter-American Court of Human Rights held that mandatory licensing was incompatible with freedom of expression.

Freedom of Information The importance of freedom of information to a democratic form of government cannot be overestimated. In its very first session in 1946, the United Nations General Assembly adopted Resolution 59(I), stating: "Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated." As the UN Special Rapporteur on freedom of opinion and expression observed in 1995, the right to receive information is not simply the converse of the right to impart information but is an independent right:

Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked.

In his 1998 Report, the Special Rapporteur noted that there should be a presumption in favour of access to government-held information. He also noted that access is best implemented in practice where it is guaranteed by freedom of information legislation. Most established democracies already have in place such legislation and plans to introduce freedom of information laws are relatively well-advanced in countries all over the world, including the United Kingdom, Trinidad, South Africa, Bulgaria, India and Fiji.

The Special Rapporteur went on to note that in practice access to information requires an independent administrative body which can review refusals of access and which can order the authorities to release information where non-disclosure cannot be justified. There are clearly exceptions to the general right of access but these should be clearly and narrowly set out in the law and a public authority seeking to deny access should be able to demonstrate a clear risk of harm to a legitimate interest to justify nondisclosure In many countries, there is a barrage of legislation which undermines access to information, such as the Nigerian Official Secrets Act (1962). Any freedom of information law should include a provision that it should prevail in case of conflict with such legislation.

Content Restrictions Purportedly in the General Public Good

Every society imposes some restrictions on the content of expressions to protect the public from general harms such as public disorder or threats to national security and these are legitimate grounds for such restrictions under international law. If they are not cast in sufficiently narrow terms, however, such restrictions can easily be abused by authorities to limit legitimate political speech. The concepts of public order and national security are susceptible of a very broad interpretation. For example, authoritarian governments have sought to limit such political debate - at the heart of a democratic form of government - arguing that it poses a threat to public order.

In some countries, the public interest grounds for restrictions go beyond public order and national security, for example to protect the public against "false news", "fear and alarm" or certain political programmes, such as the transition to civilian rule in Nigeria. These restrictions are not generally permitted under international law as they neither protect one of the limited list of legitimate interests nor are they necessary. In particular, the idea of free political debate is at the heart of freedom of expression - restrictions which seek to impose a certain ideology or programme, no matter how broad the support for it, can never be justified.

Certain specific restrictions on freedom of expression, though perhaps formally justifiable, have so often been abused that they have been abolished or are effectively a dead-letter in many jurisdictions. Sedition is a good example of this. In 1840, the United States Congress took the extraordinary step of repaying all the fines ever levied against individuals convicted under the Sedition Act 1798, on the basis that it was unconstitutional and invalid. Sedition remains a common law offence in the United Kingdom but has not been applied for over 50 years. Similarly, in Canada, the Criminal Code still prohibits sedition, but it has not been used since 1951, when the landmark case of Boucher v. The King so narrowed the scope of the offence as to render it obsolete.

To guard against the abuse of public order and national security as grounds for limiting freedom of expression, human rights jurisprudence requires that a sufficient nexus between a given expression and the purported harm be established. This implies that restrictions which do not satisfy the following conditions are not legitimate. First, the risk of harm must be highly likely; a merely possible or speculative risk is not enough. Second, the risk must be of imminent harm, in the sense that the harm would ensue immediately or very shortly after the impugned expression. The third, related, condition is that the harm must flow directly from the expression. In tense social circumstances, the risk of public disorder or violence may be quite great. Debate about the underlying problems is necessary to defuse the situation but may be seen as contributing to the risk in the short term. The third condition means that it is only legitimate to prohibit expression which directly incites to disorder or violence. Fourth, the risk must be of serious harm; minor or insignificant harm cannot justify restrictions on a fundamental right. Finally, some sort of intention must be present where sanctions are to be applied. Thus it may be legitimate to interrupt a public speech which is the equivalent of a "spark in a powder keg" but the speaker may only be subject to sanction where he or she intended to ignite the powder.

These conditions find substantial support in both national and international standards. For example, in October 1995 ARTICLE 19 convened a group of experts in international law, national security and human rights which drafted what have become known as the Johannesburg Principles on National Security, Freedom of Expression and Access to Information. These principles have been endorsed by the Special Rapporteur on freedom of opinion and expression and noted by the UN Commission on Human Rights. Principle 6 is of particular interest here:

Subject to Principles 15 and 16, expression may be punished as a threat to national security only if a government can demonstrate that:
a] the expression is intended to incite imminent violence;
b] it is likely to incite such violence; and
c] there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

While the Johannesburg Principles deal with restrictions on grounds of national security, the same considerations apply to many other general public interest restrictions on freedom of expression. A brief submitted by ARTICLE 19 to the European Court of Human Rights in December 1997 surveyed restrictions on freedom of expression to protect public order in Australia, France, Germany, India, the Netherlands, South Africa, Spain, the United Kingdom and the United States. The brief concluded that:

in any of the nine democracies surveyed expression alleged to incite a threat to public order can only be prosecuted in the narrow circumstances that the speech at issue is intended and/or likely to directly incite an immediate and serious breach of the peace.

A recent case before the European Court of Human Rights challenged binding over orders which were imposed on a number of demonstrators. It is significant that the Court only allowed the sanction only in those cases where the demonstrators had physically obstructed legal activities; where demonstrators had engaged in peaceful protest, binding over orders were not appropriate.

Defamation Law The law relating to defamation, by which I mean all law which has as a goal the protection of personal reputations, is highly developed and hugely complex. Defamation suits tend to be very common and there is a large body of both national and international jurisprudence on this issue. I would like here to address just three key issues which either are or may become important in Nigeria as democratic consciousness takes root.

The first is the principle that public officials must withstand a greater degree of criticism than ordinary citizens. There are two key reasons for this. First, such officials have knowingly and willingly put themselves in the public eye and must tolerate enhanced public scrutiny. Second, criticism of official action is central to democracy. This principle has been reiterated on a number of occasions by the European Court of Human Rights. Indeed, the European Court has held that the scope of this principle extends to all matters of public interest. This principle has also been adopted by many national courts.

The second relates to the question of proof of truth. In common law jurisdictions, it has traditionally been open to the defendant in defamation actions to prove the truth of the statements as a defence. If the defendant could not prove this, however, factually damaging statements would generally sustain liability. This approach has been rejected in many jurisdictions as imposing too high a standard on the media which have an obligation to report in the public interest. Instead, in these jurisdictions, the media are required only to show that they have not acted maliciously, or that they have acted reasonably, even if ultimately they published factually erroneous material. Decisions to this effect have been rendered by superior courts in Australia, India, New Zealand, Pakistan, South Africa, the United Kingdom, the United States and Zambia. The European Commission of Human Rights has also held that proof of truth is not necessary and this issue is currently before the Court.

Third, it is now clear that the quantum of damages is also subject to the international test for restrictions on freedom of expression. An important case before the European Court of Human Rights challenged the level of damages imposed for a defamatory statement. The Court held that any sanctions also needed to satisfy the proportionality part of the test and that in this case they were too high to be justified.

Conclusion The importance of freedom of expression as a fundamental human right is now beyond question and the key role it plays in a democracy has been recognised by courts, international bodies and human rights activists around the world. Judicial and quasi-judicial bodies, both national and international, have dealt with most of the challenges facing the Nigerian media today and have provided us with solutions to many of them which respect international human rights norms.

I have tried to outline some of these solutions to you today. I hope that this presentation has provided some useful material for the working groups. It is only by recognising these international standards, and by implementing them in practice, that Nigeria can regain her proper place as a respected member of the community of nations.

1. Paper for the Media Laws Reform Workshop, 16-18 March 1999, Lagos.
2. Toby Mendel is a head of Law Programme at Article 19.