The Handbook of Communication Rights, Law, and Ethics

Loreto Corredoira, Ignacio Bel Mallen, Rodrigo Cetina Presuel, Loreto Corredoira, Ignacio Bel Mallen, Rodrigo Cetina Presuel

• Publisher: Wiley-Blackwell
• Year: 2021
• ISBN:
  9781119719496
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

Discover how modern technological realities shape freedoms of expression and opinion with this comprehensive resource.

The Handbook of Communication Rights, Law, and Ethics delivers an extensive review of the challenges facing modern communication rights. It offers readers an examination of the interplay between communication law and ethics and the role played by communication professionals in protecting individuals' rights to communication.

Distinguished authors Loreto Corredoira, Ignacio Bel Mallén and Rodrigo Cetina Presuel walk readers through the fundamental ideas and concepts that represent universal common ground regarding communication rights. They compare communication rights theories developed in Europe, the United States, Latin America, Australia, and East Asia to describe how communication-related freedoms and rights are formulated and applied around the world. Finally, the meaning of the phrases "freedom of expression" and "freedom of the press" are examined in the context of national constitutions and international human rights instruments. The Handbook of Communication Rights, Law, and Ethics provides readers with:

• A diverse, global perspective on how communication rights are protected and challenged around the world
• A universal vision of communication rights that encourages dialogue rather than confrontation
• A comparison of the American First Amendment of the Constitution with European communication rights theories and other legal traditions around the world
• An exploration of the frontiers of communication rights concepts, terminology, jurisdiction, and territoriality

Perfect for professors, graduate students, doctoral students, and postdoctoral researchers studying communication rights and freedom of expression around the world, The Handbook of Communication Rights, Law, and Ethics also belongs on the bookshelves of researchers studying issues surrounding freedom of the press in North America, Europe, and Latin America.

PART I
Communication Rights: Principles

1
Freedom as the Essential Basis for Communication Rights

Ignacio Bel Mallén

This chapter argues that no right can be exercised without freedom. Within this framework, I analyze the classic concept of freedom, which has served as the basis for the fight to secure rights for the press, book publishers, and individuals for the past 17 centuries. Freedom is what all human actions have had in common when people have claimed rights from the powerful, from the right to print without fear of censorship to communication rights as they appear in the Universal Declaration of Human Rights (UDHR) and as they have been studied by scholars.

There have been many authors based in the fields of law and politics, and even sociologists, who have analyzed and addressed the UDHR, from the points of view not only of human rights and the foundation of human beings’ liberties and rights but also of their relationship with politics, culture, and ethics. These authors include, among others, Desantes, Glendon, Romain Parmenteir, Oraa, Gomez Isa, and Gimbernat. Not surprisingly, the recent commemoration of the 70th anniversary of the declaration has made this important universal manifestation of human rights topical once more.

Since the beginning of their existence, humans have felt the need to express themselves and to communicate with other humans. For Aristotle, as Azurmendi (2015) highlighted in examining the remote antecedents of communication rights, politics is “society’s founding activity,” an idea that connects with the clear relationship between communication and community (in Spanish at least). People have always sought ways, whether physical, visual, or oral, to fulfill this innate need to form relationships. Through most of the long history of humanity, these relationships were created spontaneously, without restrictions or conditions, with the only difficulties being those imposed by the current state of media and technology at any given point in history. Primitive societies were not conscious of the concept of freedom to communicate, because they exercised that freedom naturally. This is what Desantes calls “the spontaneous freedom of the classical world” (Desantes Guanter 1977, p. 46).

These beginnings make sense because the need for freedom, as a basis for communication, is not perceived until freedom of expression or communication is restricted by an act of force for whatever physical, legal, or political reason. The right to communication has been termed ius communicationis by F. de Vitoria to frame it as a social right, as Corredoira and Sánchez Férriz have pointed out.

Various studies on Francisco de Vitoria focus on his contributions to the promotion of human rights in the early sixteenth century. José María Desantes (Desantes Guanter 1999) considers him the first precursor of communication rights in his work Francisco de Vitoria, precursor del derecho de la información as does Ramón Fernández (2003) in Los derechos Humanos. Antología. De Vitoria did not write directly; his legal work Lectiones has been handed down to us from his students.

The Existence of Freedom Prior to Rights and States

From the moment in history when communication rights began to be restricted – I refer here to the first formulations of these rights, such as “the freedom to print” or “freedom of press” (Virginia Declaration of Rights of 1776) – a fight for unconditional freedom of expression began. In many cases, it would prove a difficult battle. During this long period, all political structures tended to limit the freedoms of their citizens, particularly in the area of information, in terms of both what could be said (speech) and what could be published (the press). This was done in the service of the ruling classes and was a product of their lack of understanding. They believed themselves to be the exclusive holders of these freedoms and to be the ones vested with the power to concede these freedoms – with limitations – on citizens. A clear example of this is seen in absolute monarchies in Europe. If we understand freedom to be, in the words of Castro Fariña, “the absence of barriers” (Castro Fariñas 1970, pp. 31–44) then absolute monarchs established a broad range of barriers to freedom of expression.

As the years passed and Western states began to form in the eighteenth and nineteenth centuries, it appeared that the situation would improve because positive declarations of rights appeared, and these promoted the freedom of citizens as a basic principle. During this period, constitutions made the effort to include freedom, albeit in general terms, as one of their basic principles. While the emergence of states promoted citizens’ freedoms in one sense, it also severely delayed the arrival of the era of human rights.

This reflects a crude reality. States, which conceded certain freedoms to citizens, limited those freedoms in pursuit of their own interests, and these limitations were not always legal or consistent with citizens’ rights. Up until the twentieth century, states ignored the idea that the concept of freedom, as a fundamental human attribute, clearly precedes the creation of political structures. Indeed, states thought that they were the first to grant freedom to people and, therefore, had the right to define and limit that freedom in a way that suited their political and social goals. And so, they codified and enshrined the concept of freedom into their laws and into the first constitutions.

This perception posed a challenge to individual rights because states understood freedom not as a reality existing prior to the creation of states – or, indeed, as something intrinsic to all human beings – but instead as an attribute created and established by the state. Not even Thomas Paine’s ideas in his work The Rights of Man (1791) had much impact at first, despite his great influence on the United States’ declaration of independence. Paine argued that the rights of man are innate and precede all else: “The Revolutions of America and France are a renovation of the natural order of things, a system of principles as universal as truth and the existence of man, and combining moral with political happiness and national prosperity.”

In the Spanish and Latin American contexts, Francisco de Vitoria is also considered a pioneer, as previously mentioned, when it comes to the communication rights that we enjoy now.¹ He asked the Spanish Crown for “just titles” (a version of innate rights) for the peoples of Spanish America at the beginning of the sixteenth century. When the New Laws of the Indies were promulgated in 1542, they drew on de Vitoria’s views on human rights and policy.

This allowed the state to limit freedom when it felt that such freedom was not being exercised along lines that served the state’s interests. The problem during this historical period is that the state, which conceived and defined freedom under specific circumstances, could limit that freedom until it no longer existed. What was the root cause of this? Put quite simply: the act of basing freedom on the state rather than on human beings.

This gave rise in subsequent centuries, principally the nineteenth and twentieth, to laws and even constitutions that, on paper, were clearly liberal but that in their daily implementation supported dictatorships in which the exercise of freedom was non existent – for example, Sweden’s 1991 law on freedom of expression, which is one of the four fundamental laws that comprise the country’s constitution, or the Dutch reformed constitution of 2018. This illustrates the conservative concept of freedom subjugated to the political idea of order.

Clearly, this situation had negative consequences on the consolidation of all rights, including communication rights. The idea that human rights are a positive and complementary consequence of the exercise of human freedom is incorrect. Freedom per se is a way to exercise rights, and it neither precedes nor follows from rights. Rather, freedom is an attribute of rights. No right can be exercised without freedom. And there is an even more important idea at work: human rights, which allow humankind to fulfill its existential needs, precede the existence of states and are rooted in the human condition itself. Rights are innate to humans: they are born with a person and belong entirely to that person until the moment of their death.

From Freedom of Expression to Communication Rights

The true sense of freedom can be understood when we consider it as a form in which a right is exercised – in this case, communication rights and their three facets (seek, receive, and impart) as these are analyzed in this work. In this way, the exercise of liberty can be understood perfectly as a way to facilitate the development of human rights, since rights cannot be exercised without freedom. The two concepts represent two sides of the same coin, though there is a substantial difference between them. Freedoms, particularly public ones such as freedom of expression or freedom to join a union or political party, are innate to man, yet they are regulated by the state by virtue of its authority to establish the extent of the freedom defined in its laws and regulations. From this perspective, freedom is a concession from the state, which becomes more democratic when it concedes more freedom, but which always retains the possibility of limiting freedom in the name of the so-called public good in order to protect other assets. This is the case, for example, with official and judicial secrets as well as with regulation of telecommunications.

In contrast to freedom, human rights are not conceded by the state nor do they have their origins in the state. They fall under the authority of humankind and are innate to it; they are born together with the individual and accompany that individual throughout their life. The role of the state is to recognize human rights in this way...