The Media and Freedom of
Expression:
A Discussion
By
Nunik Maharani Hartoyo, S.Sos., M.Comn&MediaSt.(Mon)
NIP.198101262005012001
A Paper
Presented to
The Department of Journalism Studies
Faculty of Communication Science
Universitas Padjadjaran
The Media and Freedom of Expression: A Discussion
The Right of Freedom of Expression
Raphael Cohen-Almagor (2005) states that rights are essentially moral entitlement of
every human being. Freedom of expression, Cohen-Almagor argues, is a right that
protect against harm or guarantee liberty. It is a right that is considered as one of the
most important features which define democracy (Petley, 2007, p. 186).
The freedom of speech and expression and the right to information are acknowledged
by the United Nations (UN). It is included in Article 19 of the Universal Declaration
of Human Rights (United Nations, 1948), which lays the foundation of the UN.
According to Article 19, ‘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.’
Another important document that enshrined the importance of freedom of opinion and
expression is the European Convention on Human Rights (ECHR) in 1953. It put the
freedom of expression subsequent to the freedom of thought, conscience and religion.
According to ECHR (Council of Europe, 1953) Article 9, ‘Everyone has the right to
freedom of thought, conscience and religion; this right includes freedom to change his
religion or belief and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and
observance.’
In ECHR Article 10, freedom of expression is recognized as follow,
the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary (Council of Europe, 1953).
Such acknowledgement is important in itself. A careful interpretation and application in
everyday life is another problem. It is clearly stated that freedom of expression is
subject to the protection of the rights of others. Interestingly, this is the particular part
that many of us choose to neglect in exercising our rights of free speech.
The Universal Declaration of Human Rights and ECHR are not the only existing
documents which acknowledge and incorporate freedom of speech and expression.
Each nation has its own version such as the US Bill of Rights and the French
Declaration of Human Rights. Such recognition shows that freedom of expression has a
unique position in contemporary societies.
Freedom, however, has its limitation. In defending Satanic Verses, Rushdie (as cited
in Duffy, 2004) writes, ‘what is freedom of expression? Without the freedom to
offend it cease to exist.’ However, Richard Webster (as cited in Ranasinha, 2007, p.
49-50) contends that freedom without responsibility is dangerous particularly if it is
offensive and damaging. In similar vein, the Minister for racial equality in the UK,
Fiona Mactaggart (2005) argues,
Free speech is a crucial right for everyone, faith groups as well as artists. For many years the law has established that free speech rights do not license people to stir up hatred of others on the basis of their race. Now we are seeking to offer the same protection to people targeted because of their faith. This is not religious appeasement, but a responsible reaction to the tactics of those, especially from the extreme right, who would foster community tension by stirring up hatred of members of a faith group.
The problem is, as Canavan (1984) points out, most people now are only interested in
the desire to express their opinion. The content of message expressed, the chosen
delivery mode and the purpose of such expression are no longer important. This is
why in the United States Justice Murphy (as cited in Canavan, 1984, p. 11) opined,
Defining and understanding freedom of expression clearly is a complex and
challenging process. Issues such as limitation to freedom, tolerance, and the need to
preserve and celebrate diversity in a pluralistic and multicultural society are
continuously negotiated. This is also the case with Fitna (2008).
Wilders Has Crossed the Line
Thomas Olesen (2007, p. 297) posits that public spheres rest at same set of values
whereby freedom of expression operates at the most basic level. It is worth noting
however, that these values are perceived and exercised differently within one nation to
another as a result of distinct cultural and historical background. Media, as Olesen
furthers his argument, serve as the communicative infrastructure of the public sphere.
Internet in this respect is included.
The internet, as the increasingly popular media, plays a central role in creating public
spheres. Users from around the globe are interconnected in Cyberspace which
provides an alternate outlet that may have political consequences (Best et al., 2005, p.
52). It has significantly magnified our opportunity to exercise one of our most basic
rights; freedom of speech. However, even in Cyberspace, not all forms of expressions
are welcome. Weckert (2007, p. 26) argues that efforts to limit offence to national or
cultural borders are impossible to undertake given the current state of the media,
particularly with the rapid growth of the Internet. In this regard, Tehranian (2002)
asserts that the social construction of media and the advent of ICT are able to create
multiple effects; concentrating and diffusing power, homogenizing and pluralizing
identities, globalizing and fragmenting. Furthermore, as Rogerson and Fairweather (as
cited in Alia, 2004, p. 147) assert ‘the stakes are much higher, and consequently
considerations and applications of social responsibility must be broader, more
profound and above all effective in helping to realize a democratic and empowering
technology rather than an enslaving and debilitating one.’
Challaby (2000, p. 20) argues that, ‘communities based on gender, ethnicity, religious
affiliation and sexual orientation –as well as specific interest groups within these
communities—coordinate their political lobbying, construct their collective identity
street demonstrations, flag burnings, and stones hurled through embassy windows are
still widely practiced, Omer (as cited in Saunders, 2008, p. 318) notes that in
Cyberspace, keyboard, mouse and economic boycott have transformed into a new
weapon of politics recognized by ‘the Islamic world’s’ new activists.
In recent times, media and religion have become inevitably connected in such an
intricate way as a result of the communication and information revolution (Biernatzki,
2002). Islam and Muslims’ incapability to endure criticism and change are the
recurring theme running in media coverage. This is the same argument used by
Wilders in responding to the possibility of violent reactions from Muslims worldwide.
It is important to note that every freedom carries its own responsibility. Robin West
(as cited in Sadurski, 1999, p. 219) argues,
The measure of our liberty becomes not the extent to which we can tolerate the offensive, hateful, or simply unpopular ideas of others, but the degree to which we individually take responsibility for the truth of our utterances and collectively value and nurture the communicative and truth-promoting realms of political culture and political dissent.
Freedom of expression does not mean we can harm others. As stated by Horn (2007),
‘the value of free speech does not depend primarily on the use to which this right is
put, and its only limitation is the rights of others.’ In similar vein, Mill (as cited in
Soutphommasane, 2006, p. 36) posits that ‘the only purpose for which power can be
rightfully exercised over any member of a civilized community, against his will, is to
prevent harm to others’. Thus the appropriate question would be what is considered as
harm? How are we going to define harm?
According to Soutphommasane (2006), Millians are defining harm as immediate
physical injury. If physical injury occurs as a result of utterance, restriction of speech
can be implied. Such narrow definition is no longer suitable in our contemporary
society at which psychological abuse is considered as equally serious as to physical
abuse. The traditional definition also fails to recognize the possibility that the message
delivered could be inherently harmful.
To safeguard fundamental civil rights, Cohen-Almagor (2005, p. xv) points out that
Expressions which intended to impose psychological offence are grounds to abridge
the liberty. By purposely referring to the Qur’an as the driving source of terrorism acts
and combined it with careful selection from media footages and images, Wilders in
this case has instigated psychological offence. Fitna is clearly attacking the religious
beliefs and freedoms of Muslims. His intention and acts have vilified and degraded
Islam and Muslims; as though denying Muslims’ full membership of modern society.
Democratic societies in many respects do not champion freedom of expression to the
exclusion of other considerations. Hence Wilders needs to re-evaluate his methods
and stop hiding under the disguise of free speech in diffusing his harmful messages.
In the case of Fitna, just like Martin Jacques writes (as cited in Bhattacharya, 2007, p.
19) that the argument over the Danish cartoons cannot easily be reduced to a matter of
freedom of speech and expression, I too argue that one should look beyond the
apparent. As Jacques further continues, ‘even if we believe that free speech is
fundamental value, that does not give us carte blanche to say what we like in any
context.[…] Respect for others, especially in an increasingly interdependent world, is
a value of equal importance’. Freedom of expression should not be interpreted as
licence to offend.
Wilders in this case did exactly the opposite. Wilders and his proponents insist that
Muslims who live in the West must understand that freedom of expression protects
the right to publish offensive materials (Rheault and Mogahed, 2008). At this point, I
argue that Wilders perceives freedom of expression as an absolute form of liberty
hence neglected the rights of others to hold and practise their beliefs as well as their
rights to be offended. As Sadurski (1999, p. 218) notes, by defending our rights to
speak freely for rights’ sake (and not for the values which such rights promote), it
means that we are denigrating the opinion expressed in it. Wilders’ persistence to
protect the Dutch traditional culture and values against Islamic fundamentalism has in
fact failed to demonstrate the importance to recognize the rights of others; a value that
is highly appreciated in the West.
Sivanandan (2006, p. 76) points out that absolute freedom can lead into absolutism as
shown by Hitler. Hitler, as Sivanandan argues, used freedom of speech to limit speech
be critical of the exercise of freedom of expression such as Wilders’ decision to
produced and published Fitna. Fitna, I argue, is a deliberate insult disguised as an
exercise of free speech in which disrespects the religious liberty of others. If Wilders’
plan to produce and publish a sequel of Fitna is to be carried out, one argues that we
may witness the history repeating itself.
The increasingly borderless world has yielded an interconnected sphere made possible
by the advancement of ICT whereby respect and tolerance toward others’ beliefs and
values systems are essential (Harkness et al., 2007, p. 276). Jeremy Shearmur (2006)
posits that freedom of expression is not a justification to disregard others’ sensibilities
thus he points out that there is a moral argument to ban offensive and insulting
publications. Interestingly, according to Petley (2007, p. 182), censoring and banning
published works can be difficult and counter-productive. As demonstrated previously
in the case of Satanic Verses and the blocking of YouTube to prevent Fitna being
downloaded by Indonesians, banning only resulted in the increasing popularity of
matter in question. Thus, despite Muslims’ deep resentment, one can argue that of
banning published works has proven to be counter-productive and unnecessary. The
least we can do is to learn from cases such as Satanic Verses, Submission, Danish
Cartoons and Fitna that religious and cultural sensibilities are becoming more
important over time. Therefore, such sensibilities should be recognized and
incorporated in the exercise of our liberty of expression. As Cohen-Almagor (2005, p.
23) suggests, we need to be aware of the implications of words and ‘restrict certain
forms of expression when designated as levers to harmful, discriminatory actions.’
In Search for Alternative Approach
From the Rushdie Affair, Van Gogh’s assassination, Jyllands-Posten’s cartoons and
Fitna, we learned that certain sensibilities in practising our basic rights of religious
liberty and freedom of expression are irrefutable. However the enduring question
would be what could be done if our rights were confronted by the rights of others.
As demonstrated by many countries in Europe and most recently in the election of
John Key as the Prime Minister-elect of New Zealand, we are witnessing the
increasing tendency of the international politics moving to the right. At the same time,
amidst the growingly borderless world, the need to distinguish ourselves from others
becomes paramount. The strong sense of nationalism is an important and persisting
issue in many parts of the world.
Media along with freedom of expression, if exercised irresponsibly, could pose a
dangerous threat to any democratic society. Therefore it is necessary to develop a
comprehensive media code of ethics that set a standard and provide guidelines on how
the media ideally work. The most viable way to deal with religious freedom, the
liberty of utterance and the utilization of the media as the medium of choice to
exercise individual right is to encourage the creation and reinforcement of national
laws and national codes of media ethics. Such an approach is the most possible and
effective one because of its specific historical and cultural context to each case. This
is the approach taken by both the Danish and the Dutch Governments. Freedom of
expression was respected and offended parties were able to pursue democratic and
legal actions to exercise their rights.
It is indubitable that the publication of the Danish cartoons were ill-considered and
Wilders’ decision to produced and published the film was a genuine offence.
However, there are always two sides of a coin. Despite the obvious fact that there are
many disappointments and even resentments; one must also acknowledge that such
controversies were also resulted from political agenda pushed forward by Islamic
fundamentalist groups to get publicity and gain support. From this perspective, the
Dutch television networks’ decision to deny Wilders’ proposal to air Fitna was a very
good example on how to handle such situation. They deliberately chose not to make
the situation worse by fuelling the flame and it was the right thing to do.
In order to gradually change our public responses to be more mature and constructive,
public education is vital. We need to encourage public discourse whereby all parties
are able to sit together and discuss the best possible strategy in handling matters that
we might have little control of (i.e. the Internet). Offensive materials and acts should
please, but just like banning could be counterproductive, by ignoring and refusing to
respond, we are actually disavowing the offender’s ultimate goal.
The development of ICT and the growing popularity of the internet allowed us to
seek, create and disseminate information worldwide. It has the power to bring
together a plurality of different religions, traditions and ethnic groups. In the global
village that we are living today, almost every aspect in our lives must be negotiated
professionally, institutionally, nationally and internationally mainly because today we
are not only operating as individual. We are also operating in national and
international contexts. Globalization has brought us opportunities and problems in
global scale. Thus, with the rise of new global media, we –both producers and
consumers- have new responsibilities with global impact and reach.
From this perspective, we may start to assess the viability of creating an integrated
global media ethics that can be applied beyond geographical and national borders. To
go one step closer to materialize a set of global media ethics, Tehranian (2002)
proposes to adopt structural pluralization in media ethics which is based on
international agreements that recognize the universal human rights to communicate.
Needless to say, there is no panacea to the complex problems of media ethics.
However, such adoption, contends Tehranian, can lead into the greater international
media freedom, equity, plurality and social responsibility. To help different groups
understand each other better, we need to create an environment that is responsible and
supportive to plurality of views. The creation of the International Press Tribunal is
important to help us materialize and reinforce global media ethics. It will also serves
as the international body to deal with complaints and disputes in international level to
accommodate multicultural concern as demanded by liberal principles
(Soutphommasane, 2006, p. 33). This is not to say that external intervention of any
kind will be applied whenever offence is taken. Such discussion is beyond the scope
of this paper. It is important nevertheless to recognize the complexities of pluralistic
and dynamic society whereby individuals should have every right –but limited to the
respect of others- to voice their own judgment on what is worth published. It is also
worth noting that there is no guarantee that by setting up a guideline or a formal ethics
to create a constructive media practice and humane contributors to our pluralistic and
multicultural society.
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TABLE OF CONTENT
THE RIGHT OF FREEDOM OF EXPRESSION...2
WILDERS HAS CROSSED THE LINE ...4
IN SEARCH FOR ALTERNATIVE APPROACH ...7
