The Handbook of Communication Rights, Law, and Ethics - Группа авторов

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society struggled initially to achieve desired levels of freedom, the struggle today is to make states recognize the rights of their people and protect the exercise of those rights. It is, and will remain, a difficult struggle, just as it was difficult to win freedom. Without a doubt, the day will come when eventually all rights will be recognized everywhere in the world. Communication, particularly information and communication technologies, has a role to play in achieving this objective; it serves as a reference point for people lacking, completely or partially, the human rights that are innate to them.

      Understanding this idea requires an understanding of the true concept of freedom; otherwise we will find ourselves with so-called frustrated freedom. Freedom, historically the fruit of constitutional revolutionary conflict, was granted by the state, which as lord and master of that concession also established the mechanisms of its development. In the event that the state does not follow those mechanisms, it assumes the authority to limit or even suspend that freedom. Freedom in this case is “given” or “granted” and does not have the status of a citizen’s right. Rather, it is a prerogative of the state.

      Under these circumstances, which are extreme but unfortunately common, freedom can become illusory or at least uncertain, regardless of how explicitly it is enshrined in a constitution. The cause of this situation – and, paradoxically, the solution – is that humans cannot be the victim of a continuous fraud. As a result, people tend to rebel against a lack of freedom. People’s yearning for freedom, which is real, makes them fight constantly, since, in the words of Desantes (Desntes Guanter 1974, p. 28):

      The rights of people to achieve their existential aims are equivalent to the aims themselves, which precede the state and are rooted more deeply than the state…. [Similar to] the condition of being attributable to human personality … freedom can be saved only when it considers itself to be what it really is: the emanation of a right, or one of the forms of exercising a right.

      This is the true meaning of freedom, which is constituted as the essential foundation for exercising any right. But freedom is an attribute, not a foundation. The foundation is the right, and direct exercise of a right requires freedom. This clearly explains why the fight for freedom has been at the core of history and how it has been possible to obtain the communication rights. Thus, since 1948 we have not spoken of a freedom of expression arising out of the will of the state, but rather of a fundamental human right that exists in people purely because of their existence. This human right is enshrined in Article 19 of the UDHR.

      The Long and Difficult Road to Communication Rights

      On December 10, 1948, over 70 years ago, the UDHR was approved in Paris under the auspices of the United Nations (UN). It is no exaggeration to consider this date epic in the history of human beings because it ended an extremely long stage of widespread fighting and conflict that initially had simple freedom as its goal but later sought the state’s recognition of individual rights. This date marked a “before” and “after” in the history of humankind and its consolidation as a holder of natural rights (see Suksi et al. 2015).

      The UDHR ended a process that, if we restrict ourselves only to the most recent centuries, began in 1628 when the Magna Carta Libertatum was written in English, or even in 1215, when the Magna Carta was approved by King John of England (Sánchez Ferriz and Corredoira 2017). The Magna Carta was followed by the Petition of Right (1628). This petition is considered by many historians2 as the first great political declaration of rights. Its 11 articles aimed to guarantee not only principles of political freedom but also those of individual freedoms. For example, it forbids arbitrary detention and extraordinary courts, and it guarantees the right of the accused to due process and to respect their rights as these are recognized in the kingdom’s laws and statutes.

      The Petition of Right lasted barely two years. Then in 1689, the Bill of Rights was signed which, for the first time in history, expressed the principle that the king’s authority does not have the force of law and that the law is above the king. It also recognized the public’s right to petition and the right to vote freely, and it established judicial guarantees and the protection of public freedoms.

      This declaration was followed by others in Europe and North America. In North America came the Virginia Declaration (1776), the US Declaration of Independence (1776), and the US Constitution (1787). The Virginia Declaration comprises 16 articles that establish a series of rights that, because of their content and language, seem to be precursors of what we understand today as human rights. The declaration considers individual rights to be natural and inalienable – a historical first.

      The Virginia Declaration establishes, for example, separation of powers (principally executive and legislative powers); it affirms the equality of men; it proclaims, for the first time, the primacy of civilian power over military power; and it establishes the right to justice and freedom of religion. Its Article 12 affirms that “freedom of the press is one of the great bulwarks of freedom and cannot be restrained by a despotic government.”

      This is the first great declaration related to freedom of communication, in this case, freedom of the press.

      Jefferson drew heavily from the Virginia Declaration to draft the US Declaration of Independence, and the content of the Virginia Declaration was reaffirmed by the US Constitution, together with its amendments. From the perspective of freedom of expression, the most important amendment is the first one. It was proposed on September 25, 1789, and enacted on December 13, 1791. The First Amendment establishes that:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      In the European context, it is necessary to mention the Declaration of the Rights of Man and of the Citizen (1789), published in France, where Jefferson was serving as US ambassador at the time. This declaration clearly paved the way for the concept of fundamental rights of the citizen, and it enumerates which rights should be considered essential. A good example is the first article, which affirms that “men are born and remain free and with equal rights” – a wording quite similar to the first article of the UDHR – and that men are “endowed with reason and conscience, [and] should behave fraternally towards one another.”

      The French declaration continues by speaking of political rights (national sovereignty, representative government, primacy of the law, and separation of powers) as well as of individual rights (resistance to oppression, presumption of innocence, and the right to property). Two articles on individual rights stand out from the perspective of information law and ethics. Article 10 states that “no one may be disturbed for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law.” The phrase “no one may be disturbed” is echoed by the UDHR’s wording of “no one shall be subjected to arbitrary interference.” Article 11 states that:

      The free communication of thoughts and of opinions is one of the most precious rights of man: any citizen thus may speak, write, print freely, except to respond to the abuse of this liberty, in the cases determined by the law.

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