By VENÍCIO A. DE LIMA*
In times of BigTechs, Artificial Intelligence, digital networks, “influencers” and fake news, it is unavoidable to face the challenge of rethinking freedom of expression and freedom of the press
World Press Freedom Day is an excellent opportunity to reflect on the rights and principles that underpin the original intentions of the UN and UNESCO. Celebrated annually in May 3, it was created by decision of the United Nations General Assembly, in 1993. The intention is to remember Article 19 of the Universal Declaration of Human Rights and Windhoek Declaration (Namibia), signed by UNESCO, together with African journalists, in 1991.
Article 19 reads: “Everyone has the right to freedom of opinion and expression; This right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The Windhoek Declaration reaffirms, in its first articles, the following principles and concepts: “(1). (…) The establishment, maintenance and promotion of an independent, pluralistic and free press is essential for the development and maintenance of democracy in a nation, and for economic development; (two). Independent press means a press independent of governmental, political or economic control or control of materials and infrastructure essential to the production and dissemination of newspapers, magazines and periodicals; and (2). By pluralist press we mean the end of monopolies of any kind and the existence of the greatest possible number of newspapers, magazines and periodicals that reflect the widest possible range of opinions within the community”.
What are the meaning and implications of the rights and principles celebrated on World Press Freedom Day?
Two notions of freedom
Before answering the proposed question, it is necessary to make a very brief distinction between two notions of freedom, one in the liberal tradition and the other in the republican tradition.
Freedom is a notion that is permeated in modern thinking. It is an intrinsic part of the history of what we call modernity and has dominated Western thought in the last two or three centuries. In the bipolar world of the Cold War, freedom served as the central argument in the ideological battle of the West against the East. Freedom is perhaps the most invoked value in the contemporary world, despite being understood in the most varied, often contradictory, ways.
In the liberal perspective, the pre-political and private character of freedom prevails. Freedom is understood as if it could be disconnected from politics and as a right formed exclusively in the private sphere. The best-known version of this perspective is the one that reduces freedom only to the absence of external interference in the individual's action, the so-called negative freedom.
In the republican perspective, the idea of freedom associated with active life, free will, self-government, participation in public life, in rs publish. This is where the original meaning of the word politics comes from, polis, that is, everything that refers to the city, civil, public. Arbitrary power (domination) is incompatible with citizen freedom, politically constructed and understood not as a private possession enjoyed by the isolated individual, but as belonging to a world where everyone can freely reveal themselves to others, without any fear of punishment. This republican freedom is historically associated with classical Greek democracy, the Roman republic and the civic humanism of the early modern age.
Liberal freedom has its origins in the liberalism that was built in England, starting in the 17th century, then as a conservative reaction to the French Revolution and consolidated in the 19th century as a complement to the idea of a free market, that is, the private freedom to produce, distribute and sell goods.
They are distinct traditions: one originates in Athens, passes through Rome and is affiliated in modern times with thinkers such as Machiavelli, Milton and Paine. The other to Hobbes, Locke, Benjamin Constant and, more recently, Isaiah Berlin.
Although both traditions nominally recognize freedom of expression as fundamental to the definition of democracy, they radically differ on the role that the State plays in relation to this freedom. In the liberal tradition, the State must completely refrain from any interference with citizens' freedom of expression.
In fact, freedom of expression is considered a protection of the individual in relation to the State whose interference is understood as restricting individual freedom, as a form of censorship. In the republican tradition, on the contrary, freedom of expression is understood as freedom of deliberation in the name of the public interest.
State intervention is welcome as it is citizens who define, through their political participation, the rules (laws) that will be followed so that freedom can be enjoyed. Freedom of expression is the basic instrument of this participation and, although it takes place in both public and private spaces, in the latter, it is only possible through politics, that is, its public defense. It is up to the State to ensure that all citizens can equally and fully exercise freedom of expression.
Freedom of expression x freedom of the press
Article 19 refers to a universal right of “human beings” and the Windhoek Declaration refers to “the press”. These are, therefore, different instances: the individual right to freedom of expression and the defense of the freedom of the legal entity “press”.
Freedom of expression long predates freedom of the press. In ancient Greece, there were at least four words that designated the concept of freedom of expression – isegoria, isology, eleutherostomia e parrhesia – essential for the full realization of the civic man in the polis. Alongside equality before the law (isonomia), it was considered one of the two basic pillars of democracy and comprised the right to voice and also the right to be heard in society. agora.
The right to freedom of expression is based on the need for everyone to freely express their opinions in public debate (or in the liberal “free market of ideas”), which would guarantee the formation of a democratic public opinion. It is a condition for the exercise of citizenship in liberal democracies: it enables free elections and the choice of representatives legitimized by the enlightened will of the population as a whole.
In relation to freedom of the press, it is worth remembering some difficulties with the very meaning of the word “press”. Among us, it can mean both (a) the printing machine [printer, typography], and (b) any means of mass communication, or even (c) the set of them (media). The transition from one meaning to another radically alters the loci of the subject of freedom of expression linked to it.
In English there is a distinction between speech (expression, voice, word), print (print) and the press (the press) which, in most cases, is not done among us. The ever-remembered First Amendment to the US Constitution, for example, guarantees both freedom of expression (freedom of speech), such as freedom of the press (freedom of the press). The difference between speech e the press it's clear.
To exist, freedom of the press implies not only the availability of printed material – paper, printer and ink – but also the ability of individuals to read, that is, the existence of a reading public. The transition from oral culture to literate culture and the formation, size and history of “reading publics” in different societies tell a large part of the story of the press itself and, consequently, of press freedom.
There is a long way to go from the anonymous flyers without periodicity, to the news books (booknews), pamphlets and handmade pamphlets, passing to gazettes, sheets (newspapers) and personal periodicals – where the writer, chronicler and editor were the same person – up to popular mass newspapers and modern newspapers and magazines. The word newspaper is only recorded in the English language at the end of the 17th century.
The emergence of companies that publish and sell newspapers meant that the circulation of information and public debate no longer occurred only directly (face-to-face) but began to be mostly mediated by the “press”. The responsibilities already attributed to freedom of expression were then extended to her. However, as the Windhoek Declaration, it is a necessary condition that the press is independent, pluralistic and free.
What the 1988 Federal Constitution says
CF88 addresses these issues without directly mentioning “freedom of expression” or “freedom of the press”.
Section IX of article 5 says: “The expression of intellectual, artistic, scientific and communication activity is free, regardless of censorship or license”.
Article 220 reads: “The manifestation of thought, creation, expression and information, in any form, process or vehicle, will not suffer any restriction, subject to the provisions of this Constitution”.
“§ 1 No law shall contain a provision that could constitute an obstacle to the full freedom of journalistic information in any media outlet, subject to the provisions of art. 5th, IV (expression of thoughts is free, anonymity is prohibited); V [the right of response is guaranteed, proportional to the grievance, in addition to compensation for material, moral or image damage]; X [the privacy, private life, honor and image of people are inviolable, ensuring the right to compensation for material or moral damage arising from their violation]; XIII [the exercise of any work, craft or profession is free, subject to the professional qualifications established by law]; and XIV [access to information is guaranteed to everyone and the confidentiality of the source is protected, when necessary for professional practice]”.
“§ 2º Any and all censorship of a political, ideological and artistic nature is prohibited. (…)”.
“§ 5 The media cannot, directly or indirectly, be the object of monopoly or oligopoly”.
“§ 6 The publication of a printed communication vehicle does not depend on a license from an authority”.
Freedom of expression is, therefore, guaranteed, subject to certain qualifications: anonymity is prohibited; the right of reply is guaranteed; declared intimacy, private life, honor and image of people inviolable; and any and all censorship of a political, ideological and artistic nature is prohibited. On the other hand, freedom of “journalistic information” is subject to the non-existence, directly or indirectly, of monopoly or oligopoly in the media.
The American exception
Political sectors that identify with the extreme right and conservatism have criticized what they consider to be censorship practices and the lack of freedom of expression in Brazil. It would be enough to carefully read the constitutional norms transcribed above to see that these criticisms are unfounded. Furthermore, the STF established jurisprudence to the effect that “freedom of expression cannot be used to carry out illicit activities or hate speech, against democracy or against institutions” (AP 1.044, 20/4/2022).
These same political sectors evoke, comparatively, the treatment that the US Judiciary gives to issues relating to freedom of expression. It is widely known what constitutionalists (including North Americans) call “American exceptionalism”. Since 1964, following the famous New York Times v. Sullivan case, the Supreme Court, although recognizing the existence of limits, began to treat freedom of expression – to the detriment of other rights such as equality, privacy, reputation and dignity – with a broader scope. which has no parallel in any other country in the world.
The behavior of the Supreme Court, combined with the increasing flexibility of legal rules regarding cross-ownership of the media, has caused negative consequences for American society, especially in relation to the growing radicalization of the so-called “cultural war” and racial issues. Hence the intensification of the internal debate that questions the prevailing jurisprudence.
Please note that the “American exceptionalism” did not, contradictorily, prevent Joe Biden's government from enacting a law (on April 24th) that makes TikTok (Chinese) unfeasible from continuing to operate in the country, on the grounds that the platform could pose risks to the national security of users. U.S.
In times of BigTechs, Artificial Intelligence, digital networks, “influencers” and fake news, it seems unavoidable that we face the challenge of rethinking freedom of expression and freedom of the press, precisely to ensure that they – and democracy – survive.
* Venicio A. de Lima He is Professor Emeritus at the University of Brasília (UnB). Author, among other books, of Freedom of expression versus freedom of the press – right to communication and democracy (Publisher Brazil).
the earth is round there is thanks to our readers and supporters.
Help us keep this idea going.
CONTRIBUTE
