This post was authored by: Aishvarya Rajesh
A positive obligation with respect to a human right is one that requires States to put into effect both preventive measures against violations (through appropriate legislative, judicial or administrative measures) and remedial measures (access to judicial reform once violations have occurred). This piece examines whether ensuring media diversity can be considered a positive obligation on States under Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), and if yes, what the scope and nature of this obligation is.
Positive obligation on States to create a favourable environment for sharing diverse views
The right to freedom of speech and expression enshrined under Article 19 of the ICCPR forms the cornerstone of democratic societies. It, along with its corollary freedom of opinion, is vital for the full development of a person and for the true participation in public debate. The ECtHR, in its landmark decision of Dink v. Turkey, has interpreted the right to freedom of expression to include a positive obligation on States to ensure the effective protection of free expression from being wrongfully interfered by private/non-state actors, and for the State itself to create “an enabling environment by allowing for everyone to take part in public debate and express their thoughts and opinions” (¶137). The Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has also acknowledged that there has been an increasing recognition that States have positive regulatory obligations to promote free speech and expression in online spaces too. The Joint Declaration on Diversity of 2007, a document prepared by several eminent jurists appointed as Representatives or Rapporteurs by the UN, OSCE, OAS, and ACHPR has similarly identified States’ positive obligation to regulate private actors so as to promote diversity in the media and prevent the undue concentration of media ownership.
The requirement for media diversity as a positive obligation on States may also be seen as emanating from interpretations of different international instruments read together, an outcome that has also been reflected in the decisions of different human rights bodies. For instance, a conjunctive reading of Art.19 and Art.2 of the ICCPR (as with the parallel provisions in the UDHR and regional human rights instruments) can be interpreted to show the positive obligation on States to promote media diversity. This interpretation has been endorsed by the Inter-American Commission on Human Rights in inter alia Baruch Ivcher Bronstein v. Peru, (2001) which opined that “…consequently, it is vital that [media] can gather the most diverse information and opinions” (¶149); and by the European Court in Informationsverein Lentia and Others v. Austria (1993) noting, “…Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor…” (¶38).
The positive obligation includes within its ambit an obligation to prevent undue concentration within media eco-systems
A positive obligation on the State to foster an environment where a diversity of ideas and opinions (media diversity) is available to the public can entail a very wide array of obligations on the State. For instance, this raises questions regarding the extent or the scope of this obligation in the regulation of social media intermediaries who have managed to accumulate significant control within the online media space. This sort of control could be seen as giving them the ability to behave in a near monopolistic manner. The Centre for Law & Democracy, in February, 2022 gave their submissions on the Practical Application of the Guiding Principles on Business and Human Rights to the Activities of Technology Companies where they opined inter alia that States can be obligated to undertake measures to promote diversity in an online space that has seen high market concentration by large social media companies.
Concentration within media eco-systems is antithetical to the idea of media diversity
Given that a positive obligation to promote media diversity exists, a necessary corollary of this would be the need to prevent undue concentration within media eco-systems. According to UNESCO, undue concentration in media refers to when one corporate body (or individual) “exercises overall control over an important part of an overall media market”. This would prevent and hinder the ability of people to receive information from multiple sources, which is crucial for the true exercise of the freedom of speech. This is because media monopoly can cloud the ‘marketplace of ideas’, and according to the Special Rapporteur for Freedom of Expression, “leads to the uniformity of the content that they produce or disseminate”. Furthermore according to UNESCO, a media monopoly poses a threat to not just the freedom of expression but by extension also to democracy as it hinders the ability of media to reflect the variety of opinions and ideas generated in the society as a whole.
Obligation to monitor and restrict M&As in the media space
In 2007, the Joint Declaration on Diversity (by the Special Rapporteurs of the UN, OAS and ACHPR and the OSCE Representative on freedom of the media) in broadcasting emphasized the requirement to put in place anti-monopoly (both horizontal and vertical) rules, including ‘stringent requirements’ of transparency enforced through active monitoring. This also covered the need to prevent powerful combinations as a result of merger activity in the media space. The Committee of Ministers of the Council of Europe has emphasized the need for licensing to be made contingent on media platform owners acting in harmony with the requirement to ensure media diversity. UNESCO’s Media Development Indicators, also acknowledge that States are required to prevent monopolies or oligopolies and must take this into account during the provision/renewal of license. The measures that States were required to take to promote media diversity and prevent monopoly were called ‘special measures’ (in the Joint Declaration on the Protection of Freedom of Expression and Diversity in the Digital Terrestrial Transition), going beyond those already existing in commercial sectors, which indicates a recognition of the need to secure media pluralism inter alia through ensuring competitiveness in the space.
A State’s positive obligations under the right to free speech and expression can be viewed as emanating directly from treaty obligations and has also been widely interpreted by a multitude of judicial decisions and eminent jurists. Acknowledging these as sources of international law under Articles 38(1)(a) and 38(1)(d) of the ICJ Statute we can argue that a State’s positive obligations under Art. 19 of the ICCPR and analogous free speech protections under international law must also include within their ambit obligations to ensure media diversity. This includes the protection of both, the rights of the speaker and the audience, under the right to freedom of speech and expression. Some ways in which this can be ensured is through allocation of funds specifically for public interest content and other at-risk sectors; establish holistic and functional market concentration monitoring systems; and also delegate, through co-regulation or self-regulation, a part of the State’s positive obligation directly to the media platforms itself to ensure diversity in its operations. The measures undertaken must be carefully designed and should fulfill the aims of promoting diversity, avoiding monopolistic behaviour, and not put at risk the independence of the media.