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

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of communication freedom are invented in the future. Rights cannot be constrained to the existing media or channels for disseminating news, ideas, and opinions.

      These rights have been taking shape since the time of town criers who announced news in the streets and markets and continue to do so in today’s era of media services, apps, and Tweets by journalists, which enrich debate and media. A commentary11 from the UN Human Rights Committee indicates that the technical media and forms of expression used to disseminate information extend from oral and written forms to sign language and even to nonverbal expression such as images or works of art. These “media,” then, include books, newspapers, pamphlets, flyers, posters, advertising, and legal documents. They may be transmitted audio visually, electronically, or through the Internet.

      News media (“the press”) is of particular importance among the various information media in a democratic society. These rights are universal, including during elections. Censorship has no place; instead, a strong relationship should exist between citizens and representatives such as members of parliament or congress. The UN commentary continues: “The free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion. The public also has a corresponding right to receive media output” (2011, n. 13).

      Access to websites, Internet service providers, or search engines should not be restricted. If some restriction exists, it should be compatible with the exceptions enumerated in Article 19.3 of the covenant and proportional to the problem or threat. In general, specific content should not be prohibited12 or blocked simply because it criticizes a government or state. These principles may seem self-evident, but they merit remembering.

      Despite all the positive aspects of technical capabilities, and though access to the Internet is essential for the proper enjoyment of universal communication rights, there are challenges related to the current state of the Internet, in which private entities have amassed great power over online means of expression.

      In Chapter 5 of this volume, Cetina Presuel warns that states and private actors risk confusing a “standardization” of what communication rights mean and where their limits should lie. Both private platforms and governments are relying on private rules and attempts to apply local laws globally in order to obtain uniform rules that allow them to police content online. In doing so, they are moving away from a view of a universal application of communication rights based on dialog and consensus and are instead attempting to arrive at common rules by imposition.

      Return to First Principles: Inalienable Content of the Rights to Seek, Receive, and Impart Information

      In light of the universal character of the subject and object of communication rights, which subsequent chapters will flesh out in greater detail, I turn now to analyzing the content of these rights. All rights, to be considered as such, must be defined by duties and capabilities, which in the case of communication rights include the ability to seek, receive, and impart all types of information and opinions.

      The Right to Seek Information

      The right to seek information is understood (Desantes Guanter 1974, p. 93) as the ability of information professionals, information media more broadly, and the general public to directly access sources of information and opinions and receive this content without any limit whatsoever. From the theoretical and practical points of view, this is undoubtedly the most difficult ability to accept and to identify as being contained within communication rights. So far, with the exception of some published rules, the capability to seek information has not been regulated in both its facets – that is, the right of all individuals and the duty of those managing information sources. Though professional customs and practices strongly facilitate access to government offices, the reality of common practice suggests a more negative picture.

      In direct conflict with this ability to research is the possibility of declaring information to be classified. This problem is evident in cases of official secrets and secrecy in summary judicial proceedings. It cannot be denied that the government – essentially the political and executive powers – has the right, under specific circumstances, to classify information that may affect internal or external security. However, it must be pointed out that, to avoid abuse, this right to official secrecy should be applied as restrictively as possible, and the length of time that information can remain classified should be proscribed. This question will be covered in detail in the third part of this volume.

      The right to seek information includes the right to access public information, for which policies of transparency and information access should be implemented by the organizations and public bodies managing the information, without concern for the source, date, or storage medium of the information. This is a key point in journalism, documentation sciences, history, and archiving. The only possible limitations, which would have to be fixed, would be those established by law in a way that maximally guarantees the security and privacy of the individual. Some of these questions, such as those about sources and transparency, will be explored in greater depth by other authors in this volume. These questions are crucial in this era in which “open government” defines relations between government and governed.

      Studies of corporations and nongovernmental organizations (NGOs) have revealed a proliferation of so-called press offices or communication departments that serve to disseminate information to external users. The freedom to seek information goes even further than this in order to arrive at the ultimate sources of information.

      An increasing number of people have exercised their right to seek information through the Internet. However, various factors have led the universal subject – the general public – to adopt a passive attitude and to delegate searches to professionals. This makes sense in light of the legal and practical difficulties for the average individual to research information.

      Taking a reductionist view, one could imagine that receiving, reading, hearing, purchasing, and subscribing to content are fairly straightforward for all the types of users described earlier. In reality, exercise of the right to receive information has various facets that one should not oversimplify. The ability to receive content – sometimes referred to as the ability to choose content – carries with it the possibility of receiving all kinds of information and opinions, as well as the possibility of refusing to receive such information and opinions. In a hyperconnected society, the receipt of messages is often involuntary. Spam, social web notifications, and messages from other “push technologies” constantly bombard the user. The channels for receiving information, ideas, and opinions change and evolve over time, but they currently include the following:

      free access to newspapers;

      paid subscriptions for paper or electronic publications;

      pay-per-view content (TV, music, news);

      content bundles (for example, press and music, or television and books);

      newsfeeds from social websites;

      electronic alerts and newsletters;

      channels containing advertising;

      undesired advertising; and

      video

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