Читать книгу The Handbook of Communication Rights, Law, and Ethics - Группа авторов - Страница 11

Rodrigo Cetina Presuel and, Loreto Corredoira

The year 2018 marked the 70th anniversary of the proclamation of the Universal Declaration of Human Rights (UDHR). Article 19 of this document could not be more relevant today: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Using the declaration as a framework, this volume explores the relationship between the legal and ethical dimensions of communication from a variety of perspectives. In particular, this work concerns itself with exploring contemporary interpretations of communication rights through a complex understanding of freedom of expression and its different aspects, taking into account the freedom to seek, impart, and receive information and ideas as well as the inherent responsibilities tied to the exercise of these rights in democratic societies. This is explored through examinations of the universality of communication rights, their relationship with human dignity, their importance for free societies but tied to understandings that conceptualize them beyond this freedom aspect and dig into both their legal and ethical obligations as well as their role in promoting equality among peoples.

In this handbook, academics and researchers, seasoned and young, examine questions related to communication rights in general as well as to communication law and ethics in particular. The volume contains works that analyze what the essential and universal elements of communication rights are and where their limits lie, what freedoms and duties they entail and how they shape the role of both citizens – as individuals and as a collective – and the press – as individuals, collectives and a democratic institution – in contemporary societies.

This volume pools efforts to present all kinds of perspectives in the field and representing voices from different parts of the world through the authors that have contributed. While most works analyze our current reality, often shaped by modern communication technologies in general and Internet in particular, others take a more foundational approach and ask more perennial questions related to the very nature of communication rights and their ethical and legal justification.

Some contributors, mainly from Spain, but also from Latin America, build upon the work of José María Desantes (+2004), a Spanish academic who held the first chair devoted to the study of Communication law at a European University in 1976. The purpose of exploring the works of an author who fully believed in the universality of communication rights is two-fold: first, to produce the first ever English-language work that collects the most relevant of Desantes’ ideas – he only published in Spanish during his lifetime – in order to start a conversation with researchers from civil law and common law countries who base their work in other theoretical frameworks that study communication law; and second, to identify the ideas and concepts present in Desantes’ work that are universal and that intersect with concepts from other approaches to communication law. The ultimate purpose is to create bridges that allow one to overcome the language barrier and start dialogues that show the path forward toward identifying a universal set of communication law concepts that help build a global theory of communication rights based around their universal characteristics but that, nonetheless, acknowledge and respect existing differences.

While this volume does admit for variations in terms and for classical, and still widely used acceptations such as “freedom of expression” or “free speech,” the term “communication rights” is preferred by many of our contributors, who embrace doctrine published from 1948 onwards, also taking into account influential work and jurisprudence produced in the United States; works, regulation, and jurisprudence from the European Union and its member states; from other countries around the world and from international legal systems. Influential Latin American authors are also given their due and concepts and frameworks such as those introduced by Antonio Pasquali (+2019) or Jose Marques de Melo (+2018) are very present in this work.

Terms like “communication law” are preferred in order to allow concepts like the French “droit de l’information et de la communication,” the Spanish “derecho de la información” (the term preferred by Desantes) or “First Amendment Law” as used by some in the United States to engage in dialogue that avoids confusion with related concepts such as, for example, “access to information” or “information law.”

The task of tackling phenomena related to communication rights demands linguistic and conceptual analyses of terminology (for example, communication, information, facts, opinions, and ideas) that have different meanings and connotations across languages. For this purpose, a compromise was necessary.

This compromise is justified by the fact that this work is published in the English language and, as it concerns itself precisely with universality, “communication rights,” “communication law,” and “communication ethics” are terms that allow for a global dialogue to emerge from the various chapters in this work, despite any terminological differences between academic disciplines, legal systems, and languages. Using these concepts as a bridge, allows us to successfully compare the implications of the phenomena we alluded to earlier, while avoiding possible confusions in terms of terminology.

Such a compromise also enables the possibility of translating into English, sometimes for the first time, contributions from many notable authors from non-English speaking countries around the world. For example, in the very first chapter of this book, Prof. Ignacio Bel (a coeditor of this volume) reviews the basic ideas contained in Desantes’ La información como derecho (Communication as a Right), an essential reference on the areas of communication law and the ethical duties and rights of journalists, a work that is essential reading in Spanish Communication Law doctrine that has also influenced the rest of the Spanish-speaking world.

Seeking universal definitions goes beyond enabling academic exchange that uses accurate terms. Because terms are defined in different ways in different languages, they also enjoy different degrees of constitutional protection in different countries. Divergences in this respect also reflect the very different legal traditions that exist around the world. This book intends to be a contribution toward more universal definitions of communication rights that can lead to more universal conceptions that nonetheless respect existing differences by fostering dialogue among nations and their different legal traditions, and their historical, social, and economic realities.

Beyond terminological explorations, by comparing the substance of communication rights in online and offline environments, this volume examines how these concepts and their ideological foundations can be adapted and updated to serve present and future societies, whatever the communication platform or medium. Comparison also allows authors to shed light on how certain aspects of communication rights endure without the need of updating and are still valid for helping societies face new communication-related challenges.

Much has changed, but so much remains the same. All this means that while Article 19 of the UDHR is the starting point for thinking about communication law and communication rights, there is a constant need to revisit communication rights, and to rethink certain aspects, particularly in the context of current technological developments.

Many of the core concepts of communication rights ought to be reinterpreted in light of the challenges that arise from a constantly connected society. And yet, many other concepts still apply, whether we are talking about information dissemination in traditional media such as newspapers, or on social media platforms such as Twitter or Facebook, even as new types of media made possible by recent technologies pose new challenges that ought to be evaluated from the points of view of communication law and ethics.

In recent years, social networks have been viewed in many quarters as platforms that threaten democracy itself and that present substantial challenges to communication rights.

For example, they are held responsible for enabling a system for the uncontrolled dissemination of unfounded rumors, disinformation, and misinformation (so-called fake news). For some governments, the press itself is also seen as the enemy and the main cause for the spread of alleged disinformation. Governments also see a great threat in online whistleblowing and have sought to criminalize the journalists that also use these as their sources.

Though these are in many respects, new challenges, journalists and editors have in fact always had to face the challenges posed by biased sources, disinformation, misinformation, a lack of factual rigor, and the need to rely on confidential informants and, of course, the hostility of those in power that the press seeks to hold to account. It is here where more universal reflections related to communication law and ethics gain relevance for the purposes of identifying the constants that allow communication professionals to respond to these challenges as well as those aspects that must change and that allows us to identify the legal and ethical norms that are still effective in solving those challenges.

Though recent technological innovations, for example, those related to artificial intelligence, mean that even some regulation in these areas is already outdated, the principles of communication law still apply to media forms that are in constant change. Radio and television are no longer limited by the need for a license from a regulatory authority, as content can be broadcast via the Internet. Audiovisual content, including the news, can be spread easily over the Internet at near instant speeds and without regard to national borders. Governments usually struggle to keep the pace with their regulatory efforts and face difficult jurisdictional challenges as a result of these technologies.

Social media networks, as they exist today, are also seen as a threat to the communication rights of individuals. This may be because the platforms wield great power over individual expression online and exercise it opaquely and inconsistently, sometimes with the complicity of states that fail to hold these companies responsible for undue interferences with the communication rights of individuals. This may also be because platforms fail to protect other individuals from harmful expression such as hate speech, discrimination, and other forms of technology-enabled vitriol, abuse, and trauma and, because states face difficult jurisdictional questions when trying to protect rights that are often infringed upon, beyond their national borders.

A good number of the works contained in this volume deal with analyzing what must change in communication law as we know it today and how our understanding of communication rights needs to evolve to better face the aforementioned challenges. Throughout the works contained in the four sections of this volume, solutions are sought in the universal aspects of communication rights through exercises in comparative law and the examination of doctrine from different parts of the world that responds to different legal traditions. Often, our contributors examine these questions from the perspective of communication ethics or by combining communication law and communication ethics in their analyses, highlighting the links between both.

Part I of this handbook, Communication Rights: Principles, includes six chapters that present the essential principles and ideas that give shape to a communication law framework that pays special attention to the intersection, or sometimes clash, between different legal conceptions and models across the United States, Europe, Latin America, and other parts of the world. Chapters explore the different aspects of communication rights, freedom as its essential component, dignity as a central principle, with special attention to universality, its importance, the prospects for a global consensus and technological developments that may threaten such universality.

This first part analyzes communication-related freedoms and rights as they are formulated and applied in jurisdictions across the world. The subjects covered include their origin and their recognition in constitutions around the world and international instruments – from the concepts of “freedom of expression” and “freedom of the press” in common law and the first bills of rights to the constitutions of modern European and Latin American states that speak of communication rights in terms closely related to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international treaties.

Part II of the volume, Communication Rights: A Study of Subjects and Messages, concerns itself with concepts and issues around communication law as the linchpin of the rights and duties of journalists, which encompass, among other things, source confidentiality, fact checking, corrections, and attributions. Together, the rights and duties of the profession give media outlets and their owners special privileges – in areas such as professional secrecy and independence – but also entail special duties rooted in the protection of the communication rights of every member of society.

Thus, the second part of the book specifically tackles questions that are particularly relevant for the study of journalism in communication law and ethics including communication rights in relation to news and ideas, or in advertising, the protection of journalistic sources, the rights of minors, objectivity and truth, disinformation and the challenges that the Internet poses for the practice of journalism and the essential duties of professionals in responding to those challenges.

Part III of our volume, Studies in Comparative Communication Law, is dedicated to comparative communication law studies on some of the major challenges our discipline faces today, such as data protection, the role of Internet intermediaries and the challenges they pose for communication rights, the tensions between the right to be forgotten and collective memory, international standards for political communication in the context of electoral campaigns, and studies on limits to free expression such as hate speech in the United States – and the search for a common ground in other legal orders – or the crime of historical denialism from an European perspective.

Other chapters in Part III analyze communication rights through the eyes of the most important Latin American thinkers to highlight the challenges specific to this region; the future of journalism from the perspective of the learnings derived from legal responses to WikiLeaks from an international perspective but, in particular, from the point of view of Australia; and current challenges related to media regulation in East Asia, particularly in the case of Hong Kong.

Part IV of the book, At the Intersection of Law and Ethics: Challenges in the Age of Algorithms, Disinformation, and Post-Truth, analyzes key issues in contemporary law and ethics such as post-truth within the context of public communication related to sustainability; online phenomena that can harm communication rights and other human rights, for example, doxing or synthetic media and how journalists can respond to these phenomena as well as the current realities in journalistic practice, such as the use of online metrics in the profession.

In general, and throughout its four parts, the volume also analyzes emerging questions that are shaping current debates in the world of communication rights including state and private surveillance; data protection and the right to be forgotten; the role of large private corporations on the Internet in protecting – or harming – communication rights; the effects of hyper-concentration of media and social media and the free flow of information online; the use of algorithms and other automatic systems for distributing and even generating news, journalistic and information sources, and ensuring access to public information, as well as the harms that technology enables. These and other topics help shape the ways in which not only communication, but communication and journalism are taught today.

As a whole, this volume seeks to identify and define concepts, questions, and universal themes that have had a consistent presence in communication law and ethics from the very beginning and will continue to be present in the future making the case for the need to study communication law and ethics together, as one discipline.

The aforementioned serve as the essential and timeless subject matter that has helped define, and will continue to define, the work of those of us interested in the study of communication law and ethics.

Overall, this volume offers guidance on how to understand the rights and duties of citizens as it relates to the free communication of their opinions and ideas and their liberty to seek, receive, and impart information, their communication rights. It also offers guidance and insights for professionals, corporations, and lawmakers based on the analysis of the mistakes of the past so that we can avoid repeating them in the future. Our aim is to offer a global picture of communication rights, through the lens of communication law and ethics, making the case, as it can be read in our overall conclusions in the Epilogue of this volume, that indeed, Communication Law and Ethics need each other.

We have been lucky that prominent scholars from all parts of the world have contributed the many different perspectives collected in this volume. Our most heartfelt thanks to all of them.

Rodrigo Cetina Presuel and Loreto Corredoira

Boston and Madrid, August 2020