Proceedings of the Conference on Intellectual Freedom in Higher Education
Montana State University
Northern Havre, April 14 –15, 1995

Sponsored By
The Montana Committee for the Humanities
The Montana State University – Northern Foundation
The MSU-N Department of Humanities and Social Sciences

Will Rawn, Conference Director
Stephen Sylveter andMark Seiffert, Editors

Freedom of Expression: Some International Guarantess
Dr. Gürsel Öngören
University of Istanbul
Turkey

In contemporary democratic systems a community of people beloning to a certain organization of political power living in a united territory is called a “nation”. As national citizens, such people have the right to be informed of the events of the state.

Democratic social systems are generally accepted as being open societies. For the people living in them, the most natural rights are the right to be informed about everything in daily life and the right to interpret, examine and criticizeeverything expect secrets involing national security. These rights can be exercised only if the public is informed. The public can obtain the necessary body of information onlyfrom an informed mass media in the most global and effective sense. (1)

The efforts of the mass media-radio, television, newspapers- to disseminate information, especiallyconcerning ideas and matters of pensonal conviction, have re-enforced the concept of freedom of expression. The most important freedom-including the rights of the mass media to free expression, a product of the twentieth century- is the freedom of speech. (2)

In contemporary theory, freedom of expression in generaly can be defined as the freedom to express ideas and opinions, and the mass media is the most convenient and dependable means for expression, public and private.

The evolution of the main principles of democracy and its pluralism can only be successful throughacceptance of the freedom of expession in the most definite and absolute interpretation.

Anyway, the defining criterion of a democratic system is tied to the acceptance of the above-mentioned freedom. Mass media as an avenue for the expression of individual views has indispensable value in effecting change in the political and social life a nation.

Providing the people with the possibility of determining sound preferences based on fact depends on two principles of democracy: pluralism and evolutionism. (3) Neigther can be successful in the absence of free expression.

However, human rights and liberties are in no way unrestricted. Rights exercised entirely without restrictions damage the freedom of others. As a natural result of this situation, the freedom of expression cannot be absolute. It, too, must suffer some restriction, to prevent misuse by its owners. This concept has been accepted and adopted in the international conventions, but only in the sense that freedom of expresion can only be restricted by law.

For example, the European Convention on Human Rights and basic Liberties (1950), after having refered to freedom of expression-including the freedom of broadcasting –in Article 10, indicates in the second paragraph that:

..... the exercise of these freedoms, since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interest of national security, territorial integrity or public safety, for the prevention of disorser or crime, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or of maintaining the authority and impartially of judiciary. (4)

Although the exercising of these liberties is indispensable to the community, in some cases there are inevitable conflicts between public interests and the rights of the individual to live without his or her privacy being violated. It is quite difficult to determine the boundaries between the two. Excepthing only events involing publicsafety, privacy should be secured. In the same way, massmedia should be subject to certain rules of deontology designated by professional constitutions.

It is quite difficult to solve this problem, and the balance mechanism between them is so complicated and interesthing that it is a necessary to organize all the methods in a proper way in order to prevent the loss of freedom of expresssion and determinethe rules of behavior in order to inform professional courts and to pass “sui generis laws” in
this field. (5)

We present the generally accepted international laws which are necessary for the freedom of expression, the first established in 1948.

1.The United Nations Universal Declaration of Human Rights(1948)

It has been accepted that everyone is entitled to all the rights and freedoms set forth in this Declaration without discrimination of any kind-race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
These rights are called Human Rights. Personal rights related to human personality are naturally immune and nontransferable and include other political, cultural and economic rights. (6)

It may be claimed that people are naturally and consciously provided with the abilities to accomplish, obtain, and most of all, to maintain human rights. Such abilities are by no means defined as rights. They must be awarded status through and the courts. (7)

Consisting of preamble and thirty articles, The Universal Declaration of Human Rights can not bind states to obey it nor can it impose sanctions on those which violate it. It does not have the force of law. In short, it depends on the voluntary compliance of the member states of United Nations.

The first article assumes that “All human beings are born free and equal in dignity and rights. The sixth article states that, “Everyone has the right to recognition everywhere as person before the law.” (8)

Article twelve states that “No one shall be subjectedto arbitrary interference with his privacy, family home or correspondence nor to attacks upon his honor and reputation. Everone has the right to the protection of the law against such interference or
attacks.” (9)

Accordingly, people’s private and family lives, security of their homes and communications within it, have been publicly placed under United Nations protections.

Article nineteen protects the right of freedom of expression : “Everone has the right to freedom of opinion and expression.” This fundamental right includes the invidual right to hold opinions without interfrence and to seek, receive and impart information and ideas through all media, regardless of international borders. This guarantee is particularly important for small states and nations, in which the sole source of information may be an international radio and television station.

Article twenty-nine establishes the following limitations on the aforementioned freedom :
“In the exercise of his rights and freedoms everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedom of others andof meeting the just requirements of morality, public order and the general welfare in a democratic society. (10)

Clearly, this international agreement is designed to encourage invidual rights of expression and access to information, but not entirly without restrictions. Two years later, the next important international agreement was established.

2.The Human Convention on Human Rights (1950)

This Conventions was established by the member goverments of Council of Europe in order to, among other things, convert the guarantees of invidual human rights, including the freedom of expression, to the international level from the national level.

Article eight begins : “Everyone has the right to respect for his private annnd family life, his home andhis correspondence. “...[T]here shall be no interference by a public authority with exercise of this right expect such as in accordance with law as necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article ten defines freedom of expression in the same wayas the United Nations Universal Declaration of Human Rights, article nineteen :

Everone has the right of freedom expression. This right will include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers[borders]. This article shall not prevent states from requiring the license of broadcasting, television or cinema enterprises. ... The exercise of freedoms, since it carries with itç duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are presented by law and are necessary in democratic society in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of the reputation or rights of others, for preventing the disclosure information received in confidence or of maintaining the authority and impartiality of the judiciary. (11)

3.The International Covenant on Civil and Political Rights (1966)

Adopted by United Nations General Assembly in 1966, The International Covenant on Civil and Political Rights took effect in March of that year. Several sections of the Covenant are relevant to our discussion :

Preamble: The States party to the present Covenant:
Considering that, in accordance with the principles proclaimed in the charter of United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Recognizing that these rights derive from the inherent dignity of human person, agree upon the following articles...

Article sixteen reiterates the guarantees of 1948 and 1950: ”Everone shallhave the right to recognition everywhere as person before the law.”

Article seventeen : “No one shall be subjectedto arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. And everyone has the right to the protection of the law against such interference or attacks.“

Article nineteen : “ Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression. This right shall include freedom to seek, receive and import information and ideas of all kinds, regardless frontiers, either orally, in writing or print, in the form of art or through any other media of his choice.
Again, restrictions on the above-mentioned rights are provided for in the agreement :

The exercise of the rights [provided] for in parapraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: For respect of the rights or reputation of others; For the protection of national security or public order (order public) or of public health or morals. (12)

4.The Declaration of the Council of Europe of human Rights (1978)

This declaration has been adopted by the ministers for foreign affairs of member states of the Council of Europe, who assembled in the Committee of Ministers on April 27, 1978.
Article four of the said declaration states the conviction that “.... the protection of human right and fundamental freedoms, both at national and international level, is a continuing task and that the individual right arising out of man’s human dignity conserve their prime value and importance throughout the changes and evolution of society.”

Article six : “ Recalling, moreover, that within the Council of Europe proposals are under consideration to extend the lists of rightsof the individual to be protected by the European Convention on Human Rights and other relevant European conventions including rights in the social economic and cultural fields.”

Article seven, in reference to Article six, notes that “..... Nothing in this respect [denies]the intial contribution that the European Social Charter has made in field of social and economic rights and[the Council is] prepared to consider the possibility of further enlarging in the framework of the Council of Europe the protection of those rights.”
Article eight establishes the Council as being :

. . . awere of the close inter-relationship between the protection and advancement of human rights and fundamental freedoms within States, and the strengthening of justice and peace in the world; Reaffirm the importance of the role of the European Covention on human Rights in the international protection of human rights and fundamental freedoms, and their effective exercise in Europe, and decide to give priority to work undertaken in the Council of Europe of exploring the possibility of extending the list of rights of the invidiual-notably rights in the social, economic and cultural fields, which should be protected by European convention of any other appropriate means (paragraph 1 and 2 ).

Finally, the member states of the Council of Europe agree that they

. . . Resolve to play an active part in the protection and further realization of human rights and fundamental freedoms including in wider concept, those in the social, economic and cultural fields, thus contributing to the stengthening of world peace and security and international co-operation as well as to the economic and social development of all peoples. (paragraph 3). (13)

5.The European Convention on Transfrontier Television

This Convention, which has been force in many European Countries since 1983, states its objectives and general purposes as follows :

This Convention is concerned with pogram services embodied in transmissions. The purpose is to facilitate, among the parties, the tnransfrontier transmission and the retransmission of televission program services.

Each transmitting party is under the responsibility to ensure, by appropriate means and through its competent organs, that all program services transmitted by entities or by technical means within its jurisdiction comply with the terms of this convention.
The Convention is quite specific in its intent to guarantee the freedom of access to information, regardless of international borders :

Article four : The parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of program services which comply with the terms of this Convention.”

In article seven, “Responsibilities of the Broadcaster,” is at once restrictive and liberating : “All items of program services, as concerns their presentation and content, shall respect the dignity of human being and the fundamental rights of others. . . The broadcastershall ensure that news fairly presents fact and events and encourages the free formation of opinions.”
Article eight designates the “Right of Reply” exactly as follows :

Each transmitting Party shall ensure that every natural or legal person, regardless of nationality or place of residence, shall have the opportunity to exercise a right of reply or to seek other comparable legal or administrative remedies relating to programs transmitted or reransmitted by entities or by technical means within its jurisdiction, within the meaning of Article 3. In particular it shall ensure that timing and other arrangements for the exercise of the right of reply are such that this right can be effectively exercised. The effectiveexercise of this right or other comparable legal or administrative remedies shall be ensured both as regards the timing and the modalities

For this purpose, the name of the broadcaster responsible for the program service shall be identified therein at regular intervals by appropriate means. (14)

At least since 1948, European nations have been very much concerned with international guarantees of freedom of expression. Nowhere is that freedom entirely without restriction, but each of the conventions declare that such restrictions must be applied solely in accordance with law annd only when the absence of said restrictions would threaten national security, public safety, the impartialityof the judiciary, or the rights of individuals.
Such rights should be fundamental concerns of all nations. We would prefer to see them reflected in the laws of all countries in the world. In this way the freedoms of expression and opinion-intellectual freedom-will be guaranteed to the utmost being in conflict with invidual rights.

END-NOTES

(1) Ozek, Cetin Turkish Press Law, Istanbul, p.4.
(2) Icel Kayihan, The Law of Mass Media, Istanbul, 1990; p. 20-21
(3) Ozek, ibid.,p. 5-6.
(4) Icel, ibid.,p. 55-56.
(5) Donay, Suhey. The Congress of Northern Countries’ Men of Law on the Integrity of Human Rights. IÜHFD. S:39(1/4), 1974, p.445.
(6) Metin, Ismail, Fetullah Eraslan. Police and Personal Rights in Turkey. Istanbul: IletisimYayinlari, 1992; p.37.
(7) Mourgeon , Jacgus. Human Rights, Translated by Aysen Emekci and Alev Turker. Istanbul: Iletisim Yayinlari, p.11.
(8) The Universal Declaration on Human Rights. Istanbul: InternationalConvention on Human Rights, Published by The Human Rights Society, p. 7-8.
(9) Siegrat, Paul(ed.) Human Rights in the United Kingdom. London: HMSO, 1992;s.39; London: Pinter Publishers, 1998, p.123.
(10) Oktay, Mahmut, “ The International Responsibility of Mass Media and Deontology of Communication(Mordity); “Istanbul, 1990, p. 120.
(11) Erman, Sahir and Cetin Ozek. Law of Press with Definition and Cocerning Judicial Texts; Istanbul: 1991, p. 305.
(12) Ibid., The Law of Press with Comments; Istanbul, 1991; p. 310. Istanbul, 1991, p.310.
(13) Ibid., p. 311-312
(14) Pekman, Cem. From the point of Europe Convention of Transfronier Television. Istanbul.

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