Cardozo law School Jacob burns institute for advanced legal studies Working Paper 027 December 2000 The enabling Environment For Free and Independent media Monroe E. Price&e Peter krug This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection http://papers.ssrn.com/paper.tafabstractid=245494
Cardozo Law School Jacob Burns Institute for Advanced Legal Studies Working Paper 027 December 2000 The Enabling Environment For Free and Independent Media by Monroe E. Price & Peter Krug This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=245494
The Enabling environment For Free and Independent media Monroe E. Price &e Peter krug USAID Center for Democracy and governance Prepared by Programme in Comparative Media Law Policy Centre for Socio-Legal Studies Wolfson College, OXFORD OX2 6UD December 1. 2000
The Enabling Environment For Free and Independent Media by Monroe E. Price & Peter Krug Sponsored by USAID Center for Democracy and Governance Prepared by Programme in Comparative Media Law & Policy Centre for Socio-Legal Studies Wolfson College, OXFORD OX2 6UD December 1, 2000
Table of Contents PREFACE INTRODUCTION CHAPTER 1: LAW. MEDIA AND DEMOCRATIC INSTITUTIONS THE LINK BETWEEN FREE AND INDEPENDENT MEDIA AND DEMOCRATIC INSTITUTIONS 1.2 LIMITATIONS ON FORMAL LAW 5 3 THE IMPORTANCE OF THE ENABLING ENVIRONMENT CHAPTER 2: STRUCTURES OF THE MEDIA AND THE ENABLING ENVIRONMENT OVERVIEW 2.2 BALANCE BETWEEN PRIVATE AND PUBLIC SERVICE MEDIA 2.3 COMPETITION AMONG MEDIA 889 2.4 FOREIGN OWNERSHIP 2.5 MEDIA OWNERSHIP BY RELIGIOUS OR POLITICAL ORGANIZATIONS 2.6 VIEW POINT DOMINATION BY A SINGLE BROADCASTER OR OWNER 2.7 ACCESS AND RIGHT TO IMPART INFORMATION 2. 8 GOVERNMENT SUBSIDIES 2.9 GOVERNMENT AS A MARKET PARTICIPANT 2223444 2.10 GOVERNMENT FUNDING CHAPtER 3: RULE OF LAW 16 3.1 CLARITY AND ACCESSIBILITY 16 EGAL NORMS 3.3 ADMINISTRATIVE PROCESS: FAIRNESS. IMPARTIALITY AND OBJECTIVITY 18 4 JUDICIAL SUPPORT 3.5 CASE STUDY: THE ABSENCE OF AN ENABLING ENVIRONMENT AND THE RULE OF LAW CHAPTER 4: THE LEGAL ENVIRONMENT FOR NEWS MEDIA ACTIVITY 20 4.1 OVERVI 4.2 NEWSGATHERING 4.2. 1 ACCESS TO INFORMATION (DOCUMENTS) 4.2.2 ACCESS TO GOVERNMENT-CONTROLLED PROCEEDINGS AND INSTITUTIONS 4.2.3 PROTECTION OF CONFIDENTIAL SOURCES 4.24 LICENSING OF JOURNALISTS AND DEMOCRATIC GOVERNANCE 4.3 MEDIA CONTENT: DIRECT REGULATION 43.1 FUNDAMENTAL PROPOSITIONS 30 43.2 FORMS OF CONTENT REGULATION 4.3.3 PROTECTION OF STATE INTERESTS 4.3.4 PROTECTION OF COLLECTIVE INTERESTS 36 43.5 PROTECTION OF INDIVIDUAL INTERESTS 44 CONTENT-NEUTRAL REGULATION RISK OF MANIPULATIO The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media ii Table of Contents PREFACE 1 INTRODUCTION 2 CHAPTER 1: LAW, MEDIA, AND DEMOCRATIC INSTITUTIONS 4 1.1 THE LINK BETWEEN FREE AND INDEPENDENT MEDIA AND DEMOCRATIC INSTITUTIONS 4 1.2 LIMITATIONS ON FORMAL LAW 5 1.3 THE IMPORTANCE OF THE ENABLING ENVIRONMENT 6 CHAPTER 2: STRUCTURES OF THE MEDIA AND THE ENABLING ENVIRONMENT 8 2.1 OVERVIEW 8 2.2 BALANCE BETWEEN PRIVATE AND PUBLIC SERVICE MEDIA 8 2.3 COMPETITION AMONG MEDIA 9 2.4 FOREIGN OWNERSHIP 12 2.5 MEDIA OWNERSHIP BY RELIGIOUS OR POLITICAL ORGANIZATIONS 12 2.6 VIEWPOINT DOMINATION BY A SINGLE BROADCASTER OR OWNER 12 2.7 ACCESS AND RIGHT TO IMPART INFORMATION 13 2.8 GOVERNMENT SUBSIDIES 14 2.9 GOVERNMENT AS A MARKET PARTICIPANT 14 2.10 GOVERNMENT FUNDING 14 CHAPTER 3: RULE OF LAW 16 3.1 CLARITY AND ACCESSIBILITY 16 3.2 LEGAL NORMS 17 3.3 ADMINISTRATIVE PROCESS: FAIRNESS, IMPARTIALITY, AND OBJECTIVITY 18 3.4 JUDICIAL SUPPORT 18 3.5 CASE STUDY: THE ABSENCE OF AN ENABLING ENVIRONMENT AND THE RULE OF LAW 19 CHAPTER 4: THE LEGAL ENVIRONMENT FOR NEWS MEDIA ACTIVITY 20 4.1 OVERVIEW 20 4.2 NEWSGATHERING 21 4.2.1 ACCESS TO INFORMATION (DOCUMENTS) 22 4.2.2 ACCESS TO GOVERNMENT-CONTROLLED PROCEEDINGS AND INSTITUTIONS 25 4.2.3 PROTECTION OF CONFIDENTIAL SOURCES 28 4.2.4 LICENSING OF JOURNALISTS AND DEMOCRATIC GOVERNANCE 30 4.3 MEDIA CONTENT: DIRECT REGULATION 30 4.3.1 FUNDAMENTAL PROPOSITIONS 30 4.3.2 FORMS OF CONTENT REGULATION 32 4.3.3 PROTECTION OF STATE INTERESTS 33 4.3.4 PROTECTION OF COLLECTIVE INTERESTS 36 4.3.5 PROTECTION OF INDIVIDUAL INTERESTS 37 4.4 CONTENT-NEUTRAL REGULATION: RISK OF MANIPULATION 40
45 PROTECTION OF PROFESSIONAL ACTIVITIES OF JOURNALISTS 4.5.1 INTERNAL PRESS FREEDOM 4.5.2 PHYSICAL PROTECTION 444 CHAPTER 5: THE BROADER ENABLING ENVIRONMENT NEW TECHNOLOGY AND THE ENABLING ENVIRONMENT 5.2 ROLE OF CIVIL SOCIETY AND NGOS 5.3 EDUCATION IN THE IMPORTANCE OF RIGHTS 54 COPYRIGHT AND THE ENABLING ENVIRONMENT 5.5 BACKGROUND AND FOREGROUND FACTORS CHAPTER 6: RESOURCES AND TECHNIQUES FOR ENHANCING THE 中地s ENABLING ENVIRONMEN TECHNICAL ASSISTANCE 6.2 RESORT TO CONSTITUTIONS AND TO INTERNATIONAL INSTRUMENTS CHAPTER 7: CONCLUSION The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media iii 4.5 PROTECTION OF PROFESSIONAL ACTIVITIES OF JOURNALISTS 41 4.5.1 INTERNAL PRESS FREEDOM 41 4.5.2 PHYSICAL PROTECTION 41 CHAPTER 5: THE BROADER ENABLING ENVIRONMENT 42 5.1 NEW TECHNOLOGY AND THE ENABLING ENVIRONMENT 42 5.2 ROLE OF CIVIL SOCIETY AND NGOS 43 5.3 EDUCATION IN THE IMPORTANCE OF RIGHTS 44 5.4 COPYRIGHT AND THE ENABLING ENVIRONMENT 44 5.5 BACKGROUND AND FOREGROUND FACTORS 44 CHAPTER 6: RESOURCES AND TECHNIQUES FOR ENHANCING THE ENABLING ENVIRONMENT 46 6.1 TECHNICAL ASSISTANCE 46 6.2 RESORT TO CONSTITUTIONS AND TO INTERNATIONAL INSTRUMENTS 46 CHAPTER 7: CONCLUSION 47
reface The publication of this document represents Center for Democracy and governance, a grant the growing international support for democracy was awarded to the Nation s Institute to identify and strengthening free and independent media as the principle characteristics of a legal enablin a key element in contributing to transparent and environment for free and independent media, accountable governance morta and to prepare and disseminate a document de pression of this interest emanated from the embodying those elements June 1997 Denver G& Summit meeting where The grant was coordinated through the the formal proceedings included discussions of P Comparative Media Law and G8 support for democracy. In the following Policy(PCMLP)at the University of Ox September, a meeting of representatives of the conference was held in June 1998 to hel G8 countries was hosted by the U.S. State the studies and develop the materials for this Department to discuss in greater depth how to document. This included commissioning a support democratic development worldwide group of essays on media law reform in a wide Building on the momentum of these variety(geographical and in terms of stage of meetings, the State Department's Bureau of transition of societies, including Indonesia, Democracy, Human Rights, and Labor took the Uzbekistan, Uruguay and Poland initiative of funding a proposal submitted to the Professors Peter Krug and Monroe E Price United States Agency for International undertook preparation of this document Development(USAID), Center for Democracy Individuals who are involved in media reform in and Governance, for the preparation of a study Africa, Latin America, South East Asia, Central identifying the legal and institutional and Eastern Europe, and the post-Soviet requirements for free and independent media Republics of Central Asia reviewed the The proposal originated with a conference at the document. Among those who were most Freedom Forums Media Study Center in New instrumental in seeing the project to conclusion York co-convened by the Center for Democracy were Ann Hudock, Department of State, Gary and Governance. The conference brought Hansen and David Black, USAID Center for together donor and donee organizations involved Democracy and Governance, Stefaan Verhulst in media law reform Director of the PCMLP. Dr. Beata With funding from the State Department, Rozumilowicz and Bethany Davis, the PCMLP and under the technical management of the and Eric Johnson. Internews The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 1 Preface The publication of this document represents the growing international support for democracy and strengthening free and independent media as a key element in contributing to transparent and accountable governance. One important expression of this interest emanated from the June 1997 Denver G8 Summit meeting where the formal proceedings included discussions of G8 support for democracy. In the following September, a meeting of representatives of the G8 countries was hosted by the U.S. State Department to discuss in greater depth how to support democratic development worldwide. Building on the momentum of these meetings, the State Department's Bureau of Democracy, Human Rights, and Labor took the initiative of funding a proposal submitted to the United States Agency for International Development (USAID), Center for Democracy and Governance, for the preparation of a study identifying the legal and institutional requirements for free and independent media. The proposal originated with a conference at the Freedom Forum's Media Study Center in New York co-convened by the Center for Democracy and Governance. The conference brought together donor and donee organizations involved in media law reform. With funding from the State Department, and under the technical management of the Center for Democracy and Governance, a grant was awarded to the Nation's Institute to identify the principle characteristics of a legal enabling environment for free and independent media, and to prepare and disseminate a document embodying those elements. The grant was coordinated through the Programme in Comparative Media Law and Policy (PCMLP) at the University of Oxford. A conference was held in June 1998 to help design the studies and develop the materials for this document. This included commissioning a group of essays on media law reform in a wide variety (geographical and in terms of stage of transition) of societies, including Indonesia, Uzbekistan, Uruguay and Poland. Professors Peter Krug and Monroe E. Price undertook preparation of this document. Individuals who are involved in media reform in Africa, Latin America, South East Asia, Central and Eastern Europe, and the post-Soviet Republics of Central Asia reviewed the document. Among those who were most instrumental in seeing the project to conclusion were Ann Hudock, Department of State, Gary Hansen and David Black, USAID Center for Democracy and Governance, Stefaan Verhulst, Director of the PCMLP, Dr. Beata Rozumilowicz and Bethany Davis, the PCMLP, and Eric Johnson, Internews
Introduction Throughout the world. there is a vast who are advocating free and independent media remapping of media laws and policies. This and wish to explain the interactions that important moment for building more democratic determine how free and independent a radio or media is attributable to rapid-fire geopolitical television station or a struggling newspaper is hanges. These include a growing zest for The enabling environment. of course. cannot information, the general move towards ubstitute for journalistic talent, for an democratization, pressures from the international understanding of audience, or for an instinct as community, and the inexorable impact of new to how information relates to increasing the role media technologies. Whatever the mix in any rendering democracy more specific state, media law and policy meaningful. But for those who are committed to Increas ingly a subject of intense debate enlivening the public sphere, a reference to the Shaping an effective democratic society substantial interactions that affect their goals can requires many steps. The formation of media be quite productive law and media institutions is one of the most We begin with an outline of areas of law important. Too often, this process of building that must be considered. Over time. across media that advances democracy is undertaken societies, it is possible to suggest specific areas without a sufficient understanding of the many of legal development that are essential for media facto law reform. In the first part of this Study, we improve such understanding, provide guidance examine a substantial list of such areas. from for those who participate in the process of defamation rules to freedom of information as constructing such media, and indicate areas for to each media-specific area and areas of general ortner application, we will provide an indication of how Laws are frequently looked at in isolation law can contribute or detract from establishin and as interchangeable parts that are separately an‘ enabling environment” To the extent advocated for the creation of effective and possible, we will draw upon experiences in a democracy-promoting media. They are also wide variety of societies and transition state often analyzed and discussed with attention paid In the second part of the Study we move to merely to their wording. However, each society discussion of the rule of onditions that has a cluster of activities. interactions of laws make law effective useful and the setting in which they exist, that make a media structure that to bolte those laws more or less effective. Different democratic institutions. This discussion states, at different stages of development addresses considerations such as the separation require different strategies for thinking about the of powers, independence of the judiciary, and ole of media and as a result, for thinking about establishment of reliable regulatory bodies that the design and structure of the environment in re loyal to enunciated legal principles. We then which they operate turn to a somewhat broader set of enabling We seek to identify components of the factors for the media larger societal issues plex legal process that contribute to ch as the state of the economy, the extent of environment that enables media to advance demand for information and the extent of ethnic democratic goals. Understanding the factors that and political pluralism before concluding with ake rules effective can lead to the specific certain practical considerations on resources and enhancement of the roles that media might play techniques for enabling in strengthening democratic institutions environment Understanding this "enabling environment"can Most of the Study deals with traditional be helpful to those engaged in building and media: print and radio and television reinforcing democratic institutions and to those broadcasting. But the Internet, with its effect on The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 2 Introduction Throughout the world, there is a vast remapping of media laws and policies. This important moment for building more democratic media is attributable to rapid-fire geopolitical changes. These include a growing zest for information, the general move towards democratization, pressures from the international community, and the inexorable impact of new media technologies. Whatever the mix in any specific state, media law and policy is increasingly a subject of intense debate. Shaping an effective democratic society requires many steps. The formation of media law and media institutions is one of the most important. Too often, this process of building media that advances democracy is undertaken without a sufficient understanding of the many factors involved. This Study is designed to improve such understanding, provide guidance for those who participate in the process of constructing such media, and indicate areas for further study. Laws are frequently looked at in isolation and as interchangeable parts that are separately advocated for the creation of effective and democracy-promoting media. They are also often analyzed and discussed with attention paid merely to their wording. However, each society has a cluster of activities, interactions of laws and the setting in which they exist, that make those laws more or less effective. Different states, at different stages of development, require different strategies for thinking about the role of media and, as a result, for thinking about the design and structure of the environment in which they operate. We seek to identify components of the complex legal process that contribute to an environment that enables media to advance democratic goals. Understanding the factors that make rules effective can lead to the specific enhancement of the roles that media might play in strengthening democratic institutions. Understanding this “enabling environment” can be helpful to those engaged in building and reinforcing democratic institutions and to those who are advocating free and independent media and wish to explain the interactions that determine how free and independent a radio or television station or a struggling newspaper is. The enabling environment, of course, cannot substitute for journalistic talent, for an understanding of audience, or for an instinct as to how information relates to increasing the role of the public in rendering democracy more meaningful. But for those who are committed to enlivening the public sphere, a reference to the substantial interactions that affect their goals can be quite productive. We begin with an outline of areas of law that must be considered. Over time, across societies, it is possible to suggest specific areas of legal development that are essential for media law reform. In the first part of this Study, we examine a substantial list of such areas, from defamation rules to freedom of information. As to each media-specific area and areas of general application, we will provide an indication of how law can contribute or detract from establishing an “enabling environment.” To the extent possible, we will draw upon experiences in a wide variety of societies and transition states. In the second part of the Study we move to a discussion of the rule of law: conditions that make law effective, useful, and just in achieving a media structure that serves to bolster democratic institutions. This discussion addresses considerations such as the separation of powers, independence of the judiciary, and establishment of reliable regulatory bodies that are loyal to enunciated legal principles. We then turn to a somewhat broader set of enabling factors for the media – larger societal issues such as the state of the economy, the extent of demand for information, and the extent of ethnic and political pluralism – before concluding with certain practical considerations on resources and techniques for enhancing an enabling environment. Most of the Study deals with traditional media: print and radio and television broadcasting. But the Internet, with its effect on
the public sphere, will be increasingly relevant to environment for develo of free and the functioning of media in society. It offers independent media new ways of thinking about the enabling The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 3 the public sphere, will be increasingly relevant to the functioning of media in society. It offers new ways of thinking about the enabling environment for development of free and independent media
Chapter 1: Law, Media, and Democratic Institutions 1.1 The link between free and olicies to further a particular right to receive and impart information be evaluated Independent Media and The Study of the late 1940s Hutchins Democratic institutions Commission, " A Free and Responsible Pres identified five possible functions as criteria for Before we turn to the "enabling the assessment of press performance. The press environment" itself, it is important to make could do one or more of the following: 1) several cautionary notes. First, existing provide"a truthful, comprehensive, and assumptions about the relationship between free lligent account of the days events in a and independent media and the building of stable context which gives them meaning,"a democratic institutions need clarification. Some commitment evidenced in part by objective may wish free media for their own sake. But reporting; 2)be""a forum for the exchange of most tie the claim -certainly the geopolitical comment and criticism, meaning in part that claim -for unencumbered media to their role in apers should be“ common carriers” of public reinforcing or fostering democracy. Edwin discussion, at least in the limited sense of Baker has written, with a small bit of irony that carrying views contrary to their own; 3) project democracy is impossible without a free press a representative picture of the constituent At least courts and commentators tell us so "In groups in the society”;4)“ present and cl this Study, we do not focus on what some the goals and values of the society", and 5) believe to be the important chicken ar question: whether evolution of demc institutions makes free media possible or informed. The Commission also identified three whether free media are a prerequisite for ummary tasks that are central to the press's meaningful transitions to democratic institutions political role: to provide information, to enlighten It does seem apparent, however, that at some the public so that it is capable of self- point in every transition, a free and independent government, and to serve as a watchdog media sector is vital government. It might be said that there is often Because there are democratic societies with an additional function of the press, namely to different profiles of the media, no specific provide to various segments of the society a matrix of press development can be considered sense that they are represented in the public essential" as part of the project of ph democratization. Development of"free and As Professor baker has written. different dependent"media can, itself take many forms conceptions of democracy demand somewhat pendence ca an have many different functions of a press. Vis gradations. It is important to know what kind of democratic society that emphasize citizen press in what kind of society will perform the participation, for example, would underscore the functions necessary for the process of building eed for media that, as Baker puts it,"aid democratic institutions to proceed healthily groups in pursuing their agendas and mobilizing or struggle and bargaining. " On the other hand especially the Internet, and greater and greater cross-border data flow. the functions of principally that the media provide sufficient traditional media may be complemented but information for those who participate in the hardly superseded. Only with an understanding public sphere to function rationally, and,o of basic elements of structure and function can course, perform a watchdog function. In some The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 4 Chapter 1: Law, Media, and Democratic Institutions 1.1 The Link between Free and Independent Media and Democratic Institutions Before we turn to the “enabling environment” itself, it is important to make several cautionary notes. First, existing assumptions about the relationship between free and independent media and the building of stable democratic institutions need clarification. Some may wish free media for their own sake. But most tie the claim – certainly the geopolitical claim – for unencumbered media to their role in reinforcing or fostering democracy. Edwin Baker has written, with a small bit of irony that, "democracy is impossible without a free press. At least courts and commentators tell us so." In this Study, we do not focus on what some believe to be the important chicken and egg question: whether evolution of democratic institutions makes free media possible or whether free media are a prerequisite for meaningful transitions to democratic institutions. It does seem apparent, however, that at some point in every transition, a free and independent media sector is vital. Because there are democratic societies with different profiles of the media, no specific matrix of press development can be considered “essential” as part of the project of democratization. Development of “free and independent” media can, itself take many forms, and freedom and independence can have many gradations. It is important to know what kind of press in what kind of society will perform the functions necessary for the process of building democratic institutions to proceed healthily. Given modern telecommunications, especially the Internet, and greater and greater cross-border data flow, the functions of traditional media may be complemented but hardly superseded. Only with an understanding of basic elements of structure and function can policies to further a particular right to receive and impart information be evaluated. The Study of the late 1940s Hutchins Commission, “A Free and Responsible Press,” identified five possible functions as criteria for the assessment of press performance. The press could do one or more of the following: 1) provide “a truthful, comprehensive, and intelligent account of the day’s events in a context which gives them meaning,” a commitment evidenced in part by objective reporting; 2) be “a forum for the exchange of comment and criticism,” meaning in part that papers should be “common carriers” of public discussion, at least in the limited sense of carrying views contrary to their own; 3) project “a representative picture of the constituent groups in the society”; 4) “present and clarify the goals and values of the society”; and 5) provide “full access to the day’s intelligence,” thereby serving the public’s right to be informed. The Commission also identified three summary tasks that are central to the press’s political role: to provide information, to enlighten the public so that it is capable of selfgovernment, and to serve as a watchdog on government. It might be said that there is often an additional function of the press, namely to provide to various segments of the society a sense that they are represented in the public sphere. As Professor Baker has written, different conceptions of democracy demand somewhat different functions of a press. Visions of a democratic society that emphasize citizen participation, for example, would underscore the need for media that, as Baker puts it, “aid groups in pursuing their agendas and mobilizing for struggle and bargaining.” On the other hand, a more elitist version of democracy requires principally that the media provide sufficient information for those who participate in the public sphere to function rationally, and, of course, perform a watchdog function. In some
models, the media has a responsibility to assist 1.2 Limitations on formal law in inculcating and transmitting "proper values Frequently, the essence of transitions to A second caution involves the functioning greater democracy is the fragmentation or of law. itself. laws that create the structural destruction of a previous monopoly or oligopoly underpinnings for independent media are power, includ ing the monopoly over necessary for the development of civil society, information as a critical element of the monopoly over power. In many societies but they alone do not guarantee how media will function. For free and independent media to reform means ensuring that there is access for a " work, the community in question must value group of voices not previously included in the the role that the media play. Rob Atkinson public marketplace of ideas. The question then is how the market is opened and to whom. Put underscores this problem by stating that, creating a civil society by legal fiat is an differently, what new or additional suppliers in mpossible bootstrap operation, both practically the market for loyalties are supported by what and conceptually. In both liberal political theory sources of power or money and with what and the history of liberal politics, the rule of law objectives. Russia in the late 1990s provides an is the product of a prior, pre-legal commitment which media to civil society. Julie Mertus has written, companies were, in large part, proxies for major formations of capital and political influence The transplant of legal institutions designed to each formation sought its own group of media promote such values as participation and entities oluntary association will not work Assuring the existence of free and absence of a prior commitment to such values independent media may require providing, in the On the contrary, the local power structure will marketplace of ideas, instruments for reject such a forced imposition as illegitimate articulating values and summoning public andor misused to serve its own needs this support that are not wholly dependent on the problem is endemic to the nature of social state. Moving towards free and independent change and legal transplantation, and the most media early in the process of transition may also knowledgeable legal experts will be unable provide a building block for the future stable set solve it on their own of democratic institutions. Even if the media do not perform the function of effective watchdog It is one thing to identify a need to alter the of engaging in information-providing and value- old cartel of voices in a society in a direction transmitting functions in the early days, that away from a monopoly or oligopoly. It is may be because of lack of experience. Starting another to try to understand what steps or the media early on the right road means that processes allow that to occur and which voices when the watchdog and other functions are in the process of change, will be favored as new necessary, the media will be more prepared entrants. In Rwanda, in the early 1990s Free and independent media may organically international organizations helped demonopolize arise in a mature democracy, but artificial steps he media and train voices different from those are necessary in many transition contexts of the state. But a newly professional, newly Finally, one might argue that the emergence skilled independent radio station became the of democratic institutions in transition societies instrument of extremists who favored. and will come faster and with greater public support indeed induced genocide. Too often, the term and involvement if there are free and independent media"is used indiscriminately to independent media to develop and inspire public describe media that contribute to democratic life as well as media that do not fall under a monopoly or oligopoly that restricts a society's set of available voices. These two attributes contributing to democracy and contributing to voice pluralism, should not be confused The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 5 models, the media has a responsibility to assist in inculcating and transmitting “proper values.” Frequently, the essence of transitions to greater democracy is the fragmentation or destruction of a previous monopoly or oligopoly of power, including the monopoly over information as a critical element of the monopoly over power. In many societies, reform means ensuring that there is access for a group of voices not previously included in the public marketplace of ideas. The question then is how the market is opened and to whom. Put differently, what new or additional suppliers in the market for loyalties are supported by what sources of power or money and with what objectives. Russia in the late 1990’s provides an example of a transition in which media companies were, in large part, proxies for major formations of capital and political influence as each formation sought its own group of media entities. Assuring the existence of free and independent media may require providing, in the marketplace of ideas, instruments for articulating values and summoning public support that are not wholly dependent on the state. Moving towards free and independent media early in the process of transition may also provide a building block for the future stable set of democratic institutions. Even if the media do not perform the function of effective watchdog, of engaging in information-providing and valuetransmitting functions in the early days, that may be because of lack of experience. Starting the media early on the right road means that when the watchdog and other functions are necessary, the media will be more prepared. Free and independent media may organically arise in a mature democracy, but artificial steps are necessary in many transition contexts. Finally, one might argue that the emergence of democratic institutions in transition societies will come faster and with greater public support and involvement if there are free and independent media to develop and inspire public opinion. 1.2 Limitations on Formal Law A second caution involves the functioning of law, itself. Laws that create the structural underpinnings for independent media are necessary for the development of civil society, but they alone do not guarantee how media will function. For free and independent media to “work,” the community in question must value the role that the media play. Rob Atkinson underscores this problem by stating that, “creating a civil society by legal fiat is an impossible bootstrap operation, both practically and conceptually. In both liberal political theory and the history of liberal politics, the rule of law is the product of a prior, pre-legal commitment to civil society.”1 Julie Mertus has written, The transplant of legal institutions designed to promote such values as participation and voluntary association will not work in the absence of a prior commitment to such values. On the contrary, the local power structure will reject such a forced imposition as illegitimate and/or misused to serve its own needs. This problem is endemic to the nature of social change and legal transplantation, and the most knowledgeable legal experts will be unable to solve it on their own.2 It is one thing to identify a need to alter the old cartel of voices in a society in a direction away from a monopoly or oligopoly. It is another to try to understand what steps or processes allow that to occur and which voices, in the process of change, will be favored as new entrants. In Rwanda, in the early 1990s, international organizations helped demonopolize the media and train voices different from those of the state. But a newly professional, newly skilled independent radio station became the instrument of extremists who favored, and indeed induced, genocide. Too often, the term “independent media” is used indiscriminately to describe media that contribute to democratic life as well as media that do not fall under a monopoly or oligopoly that restricts a society’s set of available voic es. These two attributes, contributing to democracy and contributing to voice pluralism, should not be confused
aw alone efforts of aid-givers alone, or 1.3 The Importance of the efforts by the host government alone (by subsidy, delivery of newsprint, or control over Enabling environment the means f distribution) rarely ever determine how free, pluralistic, and independent the media In this study, we discuss specific laws that can be(though all of these structural aspects are ant building blocks. Still, we important). What is true across the board is that emphasize surroundings of law and the there is a close interaction between what might creation of a culture of effective independent be called the legal-institutional and the socio and pluralistic media. After all, what is it that cultural. the interaction between law and how it makes one society open and tolerant and one is interpreted and implemented, how it is not? What is it that produces a citizenry that not respected and received. In this sense, another only has the sources to be informed but als fact, avails itself of them? It is easier and clearer Important factor to the enabling environment is to see what negative steps preclude society from the response of the citizenry. For example readership of the serious press declined allowing such a culture to develop. The tools of precipitously in post-Soviet Russia, even though speech repression are easier to identify than are newspapers enjoyed greater freedoms. Though those that encourage the productivity and use of this happened in large part because of price information. Good media laws alone eases at the newsstand. a socio-cultural make a civil society happen, though a legal or of note is that after a period of euphoria, framework may be helpful. Many are the in some societies, the zest for news about public authoritarian regimes that mastered the language events, at least in the print media, had declined of openness. It may never be known what Similarly, it is important to compare elements exactly contribute most r even behaviors of television audiences across essentially -to the creation of a culture of ns. Directors of broa democratic values. Perhaps it is the existence of soon realized that replays of American films, a vibrant non-governmental sector that is vital her or not they had been properly organizations that are sensitive, at any moment, far more successful at obtaining audiences to infringements of journalistic rights especially in a competitive environment -than Institutions like the Glasnost Defense he production of documentaries Foundation. the Committee to Protect drama. A larger audience or more reliance on the Journalists, and reporters Sans Frontieres were market, did not, in this sense, magnify at critical times in transition societies vigilant in contributions to public discourse. On the other identifying possible backsliding and bringing it to hand, to build an independent medium,attention the attention of the international community. For to audience. and the construction of a these entities, the existence of a specific media comprehensive program schedule, is vital. In all friendly law, with grounds for defense resting in these ways, it is important to acknowledge the ts violation, might make the analytic task easier elationship between law and the other elements But even the existence or nonexistence of a law of building free and independent media. Media id not determine the nature and scope of law reform is most effective or, perhaps, only scrutiny of these organizations effective. when it includes efforts to build a Media law reform and other steps that are reliable tradition of professional journalism, train taken must be evaluated in a specific way. They publishers in marketing and distribution, and should be viewed substantially as helping to develop a public culture that is supportive of the constitute a media-sensitive society and media sector evaluated in the way they contribute to this society and plugging them into the processes of transition will certainly, alone, be insufficient The public acts of drafting and debating media aws must be enacted as a drama. a teaching drama that educates the citizenry in the role that The Enabling Environment for Free and Independent Media
The Enabling Environment for Free and Independent Media 6 Law alone, efforts of aid-givers alone, or efforts by the host government alone (by subsidy, delivery of newsprint, or control over the means of distribution) rarely ever determine how free, pluralistic, and independent the media can be (though all of these structural aspects are important). What is true across the board is that there is a close interaction between what might be called the legal-institutional and the sociocultural, the interaction between law and how it is interpreted and implemented, how it is respected and received. In this sense, another important factor to the enabling environment is the response of the citizenry. For example, readership of the serious press declined precipitously in post-Soviet Russia, even though newspapers enjoyed greater freedoms. Though this happened in large part because of price increases at the newsstand, a socio-cultural factor of note is that after a period of euphoria, in some societies, the zest for news about public events, at least in the print media, had declined. Similarly, it is important to compare behaviors of television audiences across transitions. Directors of broadcasting stations soon realized that replays of American films, whether or not they had been properly obtained, were far more successful at obtaining audiences – especially in a competitive environment – than the production of documentaries or serious drama. A larger audience or more reliance on the market, did not, in this sense, magnify contributions to public discourse. On the other hand, to build an independent medium, attention to audience, and the construction of a comprehensive program schedule, is vital. In all these ways, it is important to acknowledge the relationship between law and the other elements of building free and independent media. Media law reform is most effective or, perhaps, only effective, when it includes efforts to build a reliable tradition of professional journalism, train publishers in marketing and distribution, and develop a public culture that is supportive of the media sector. 1.3 The Importance of the Enabling Environment In this study, we discuss specific laws that are important building blocks. Still, we emphasize the surroundings of law and the creation of a culture of effective independent and pluralistic media. After all, what is it that makes one society open and tolerant and one not? What is it that produces a citizenry that not only has the sources to be informed but also, in fact, avails itself of them? It is easier and clearer to see what negative steps preclude society from allowing such a culture to develop. The tools of speech repression are easier to identify than are those that encourage the productivity and use of information. Good media laws alone do not make a civil society happen, though a legal framework may be helpful. Many are the authoritarian regimes that mastered the language of openness. It may never be known what elements exactly contribute most – or even essentially – to the creation of a culture of democratic values. Perhaps it is the existence of a vibrant non-governmental sector that is vital: organizations that are sensitive, at any moment, to infringements of journalistic rights. Institutions like the Glasnost Defense Foundation, the Committee to Protect Journalists, and Reporters Sans Frontieres were, at critical times in transition societies vigilant in identifying possible backsliding and bringing it to the attention of the international community. For these entities, the existence of a specific mediafriendly law, with grounds for defense resting in its violation, might make the analytic task easier. But even the existence or nonexistence of a law did not determine the nature and scope of scrutiny of these organizations. Media law reform and other steps that are taken must be evaluated in a specific way. They should be viewed substantially as helping to constitute a media-sensitive society and evaluated in the way they contribute to this process. Taking laws off the shelf of another society and plugging them into the processes of transition will certainly, alone, be insufficient. The public acts of drafting and debating media laws must be enacted as a drama, a teaching drama that educates the citizenry in the role that
