Читать книгу The Handbook of Communication Rights, Law, and Ethics - Группа авторов - Страница 17

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.

Here, it is also appropriate to mention, for its indirect influence, the implementation of the Habeas Corpus Act (1679) for accused and imprisoned individuals, which aimed to protect the individual, prevent their arbitrary transfer, and guarantee compensation for damages arising from illegal transgressions of their rights. This document made transgressors legally responsible for their actions and established fines and penalties.

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.

In the twentieth century, in the wake of the trauma of World War II, the UN Declaration (1942) was a notable achievement. In this document, 26 states declared themselves unified in conflict against the Axis powers and committed to remaining united after the conflict in order to found an international organization whose mission would be to promote peace in the world. This agreement led to the UN Charter (1945), which created the conditions for the UDHR (1948), the final step in the long journey to establishing the primacy of human rights in the face of tyranny and abuse of the law. This was the culmination of a long process of searching for and formulating fundamental rights that would allow society to improve human dignity following all the violence of the twentieth century, primarily because of the two world wars that occurred between 1914 and 1945. The fundamental idea behind the UDHR was to establish major human rights that would impede the violations of human dignity witnessed in the twentieth century.

This is the meaning of the UDHR, which brings together the principal fundamental rights that, at the time, constituted the essence of human dignity. The declaration had a clear ethical force, even if it was not legally binding. The importance of its contents and the moral force of the rights declared therein led it to influence legislation adopted by the UN’s member states. This legislation may have differed somewhat from state to state, but its purpose in all cases was to promote human rights within each country.

One of those rights, which was doubtless quite important given the rapid development of media at the time, was the right to freedom of expression, which, until that point, had been the focus of the fight for the right to freely express opinions and ideas. It was time – and this is also the perception from the declaration – to move from fighting for freedom of expression, as people had in centuries past, toward turning that freedom into a fundamental right. The moment was propitious to grant expression free of government interference as an essential part of society, the status of fundamental right. In this way, the universal right to freedom of expression emerged.

Article 19 of the declaration states, “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.” This article establishes the basis for communication rights, the right to communication for all citizens of the world through universality of subject, medium, content, and geographic location. The development of this right was a significant achievement. It amounted to a qualitative leap that allowed the creation of communication rights as a human right that should be respected and protected by the state.

This leap would gradually become more effective as national legislatures incorporated the UDHR’s principles into their own laws and constitutions. Indeed, the goal of the declaration was to serve as the ethical and legal source for the development of national and supranational legal instruments that would make communication rights fundamental.