Читать книгу The Handbook of Communication Rights, Law, and Ethics - Группа авторов - Страница 45

The failure of the League of Nations and the atrocities committed by states in World War II inspired the need for a new model of interactions for international society, with individuals taking center stage relative to the main violator of their rights: their own states.¹ This is the historical context in which the appearance of the United Nations (UN) should be understood. It was created through the Charter of the United Nations, promulgated in San Francisco on June 26, 1945 (Escobar de la Serna 2004, p. 112). In reality, this document limits itself to formulating the principle of international protection of such rights and of fundamental freedoms without developing that principle through specific rules.

It would only be with the UDHR, approved by UN General Assembly Resolution 217 on December 10, 1948, that a recognition of human rights (with communication rights occupying a principal place among them) would emerge with a truly universal will. It sought to subordinate – if not legally then morally – states’ behavior to the rights contained within it. The undoubted rooting in natural law of the declaration, the starting point of which is the undeniable dignity of the person, led to the document becoming established as a control parameter vis-à-vis states’ observance of human rights, even above their own regulations, and it confirmed the idea expressed by Hannah Arendt’s “right to have rights” (Arendt 1976, p. 296). This disruptive concept would not be welcomed by everyone in the same way, which largely explains why this catalog of rights was adopted as a declaration and not as a treaty or agreement. The declaration’s universal applicability² reduced the legal precision of a large proportion of the rights recognized in it, but the inclusiveness that inspired it prevailed over a more legalistic orientation.

Such was the importance of the declaration that it became the common denominator in institutional discourse on human rights (Von Bernstorff 2008, p. 916). It is seen as a means for international public opinion to pressure states and has become customary international law (Humphrey 1979, p. 21) or, in the words of one of its main promoters, Eleanor Roosevelt, “the Magna Carta of mankind.”

The work of defending communication rights within the UN has taken place through progressive recognition of them. This process began with their inclusion in Article 19³ of the UDHR, the influence of which is beyond any doubt, though a certain terminological imprecision in its drafting has detracted from its ability to be applied as a legal norm rather than as a specification of moral principles. Interpretations of Article 19 have been varied, ranging from those that emphasize its universal applicability to those that stress its all-encompassing conception of communicative activity, but its pioneering role in the international recognition of communication rights cannot be denied.

Arising from this Article is the process of divergence between freedom of expression and communication rights as realities that are related but distinguished depending on the purpose of each one, a difference that is referred to for the first time in the landmark work “Droit de l’Infomation,” by Terrou and Solal (1951, p. 6), who consider communication rights as the core of “the Communication Law.” Article 19 gave rise to the so-called dualist thesis, which differentiates between freedom of expression linked to the transmission of opinions and communication rights, whose object is transmission of information. It is true that this distinction is sometimes difficult to define: there are messages that mix both rights, and they are becoming increasingly common owing to the new communication media stemming from the omnipresence of digital technologies and the importance that social networks have acquired within the ways in which citizens access information. The debatable but accepted distinction between information and opinion (an example here is the European Convention of Human Rights (ECHR)⁴ – that established case law on the matter) may not make sense in present times, and the protection derived from Article 19 of the UDHR possibly should focus more on the idea of protecting freedom of expression and opinion as all-encompassing concepts applicable to all forms of communication than on the idea of seeking, receiving, and disseminating information and opinions. Both of these rights – freedom of expression and seeking, receiving, and disseminating information and opinions – can either be encapsulated as a group of communication rights or referred to generally as “communication rights,” though some simply refer to them as “freedom of expression.” But the main idea should be that the UDHR refers to rights, not just freedoms, with the latter being more in line with nineteenth-century conceptions. A more modern understanding is that the freedom aspect is part of how communication rights are exercised. As Desantes explains, “Existential rights, human rights, or fundamental rights, such as the right to information, would cease to be so if they could not be freely exercised.” In this way, freedom follows the fate of the fundamental right in all its weightlessness and unlimitedness. Freedom is the only way to exercise right (Desantes Guanter 2004, p. 115). Even contemporary scholars that prefer to use “freedom of expression” as a generic term would also agree that we are speaking about a right, not just a freedom (González Ballesteros 1989).

Another characteristic of Article 19 is its mixed formulation, in the sense that it recognizes negative freedoms and positive freedoms. Negative freedom appears, for example, where the Article establishes how this right includes “freedom to hold opinions without interference,” which implies that the individual has a degree of autonomy when exercising his or her communicative powers. As Berlin (1968, p. 121) comments, we use the negative concept of freedom when trying to answer the question: “What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons?” In short, it is about maintaining a sphere reserved for the individual in which self-expression without interference – mainly from public authorities that often use restrictive tools such as censorship or confiscation of publications and recordings to limit these freedoms – is possible. This approach too may perhaps need to be reviewed in the new digital ecosystem. The existence of trolls, orchestrated smear campaigns, hate speech, systematic discrediting, post truth, or fake news could make us rethink the idea that the main source of interference today is not the public authorities but citizens themselves, who find it increasingly difficult to accept ideas contrary to their own. Perhaps the public authorities and private companies that operate in the communication sector, with academics and legal practitioners as catalysts, should reflect on the ideas of tolerance, respect, and acceptance of difference, so that the negative freedom included in Article 19 of the UDHR acquires real effect within the new conditions for exercising communication rights. The positive formulation, meanwhile, is characterized by the Article’s recognition of three fundamental faculties: to seek, receive, and impart information.

Another particular characteristic that we can find in Article 19 is the recognition of the right to seek information; it is unusual to find such a recognition in the rest of the international regulations on freedom of information, but it has become an essential foundation for journalism. The entire current of asserting the right of access to information has developed under the auspices and inspiration of this right to seek information. As Desantes Guanter (2004, p. 103) indicates, with this recognition, factual and legal possibilities have been opened up for citizens to seek and disseminate on their own.

Finally, Article 19 of the UDHR is not hindered by the establishment of limits or conditions on the exercise of the rights recognized; it is a generic recognition of rights that places no qualifications or limitations on exercise of them, in accordance with the classical liberal position. It is not even limited by a restriction provision that would be consistent with liberal thinking. Instead, this is dealt with in the general-limitations provision of Article 29.2⁵ of the declaration (O’Flaherty 2012, p. 630).