By Nancy Rosen, William & Mary Law School ’23 (see full bio at end of article).
On Friday, January 28, 2022, Professor Nancy Combs and the Human Security Law Center hosted a Symposium on Media Freedom & Human Rights at William & Mary Law School.
For the final presentation, Professor David Kaye presented on the Future of Media & Press Freedom Globally, which also featured Professor Nancy Combs and law student Rachel Sleiman as moderators. Kaye focused on conceptualizing human rights and media through the international legal framework of Article 19 of the International Covenant on Civil and Political Rights (ICCPR), addressing three principal threats to media and press around the world—the legal redefinition of journalism, the increase of surveillance, and the rise of social media—and concluding with ways to move forward.
Kaye is a Clinical Professor of Law, Director of the International Justice Clinic, and Co-Director of the Fair Elections and Free Speech Center at University of California Irvine School of Law. Appointed by the UN Human Rights Council in June 2014, he served as United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression through July 2020. There, he reported on various issues, including COVID-19 and freedom of expression, online hate speech, and the impact of Artificial Intelligence (AI) technologies on human rights issues. Kaye authored the book Speech Police: The Global Struggle to Govern the Internet in 2019, which “explores the ways in which companies, governments, and activists struggle to define the rules for online expression.”
Conversations about media freedom and press would not be of concern if speech did not create a harmful impact that plays a role in the definition of restriction boundaries, Kaye argued. The “difficulty of the moment is how politicized it is,” making it arduous to have conversations in the U.S. and around the world—when it is important to do so—that do not become politicized and weaponized.
To conceptualize media and press freedom, Kaye said, it is necessary to analyze the international legal framework in Article 19 of ICCPR:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Generally, Article 19 looks at the rights individuals have to access and impart information. Article 19(2) addresses audience and speaker rights, explaining that information should be publicly available and that the protection of information and ideas has a transnational reach. Room for technological development is established through the phrase, “in the form of art.” However, Article 19(3) recognizes the necessity of restrictions, including for defamation and fraud, and for the protection of issues such as public health, national security, and human rights. Importantly, Kaye noted that when Americans are a part of these conversations, they do not speak of human rights, as they are conditioned to focus on the vernacular of the Constitution. This suggests the need for tools that ensure the United States government follows human rights norms.
The Human Rights Committee of the ICCPR has been firm in its use and implementation of Article 19, reading the article as a pillar of democratic life and human rights. The Committee has addressed many important cases related to pressure on freedom of expression. The past ten years highlight that the Committee has been a key forum for advocates of Article 19. Thus, even though Article 19 does not have binding enforcement power, it is incorrect to characterize the Committee as only a mechanism for enforcement. Rather, it is a mechanism for development of jurisprudence that becomes a part of regional and domestic law. Kaye often uses this jurisprudence in his amicus filings to the European Court of Human Rights, highlighting for the Court the existence of this body of law on media and press freedom, which states are bound to under International Human Rights law. When looking at the efficacy of the Committee, it is important to “look at the long game rather than short term wins and losses.”
Overall, Kaye believes the public should embrace Article 19 because of the clarity of its vision for freedom of expression, which highlights how communication is the foundation of a strong community, not an element that stands in its way. However, it is crucial to acknowledge the confusion and uncertainty surrounding the reasons communities are committed to freedom of expression and media freedom while also recognizing the harm and threats that can be tied to speech.
Kaye presented three principal threats to this idea of media and press freedom. The first threat is the “legal redefinition of journalism.” The definition of journalism is becoming criminalized as the dissemination of false information and defamation of government are made crimes. For instance, in Turkey, the government redefined journalism as terrorism, citing the reports of troop movements and rise of terrorist groups. Using the subject reported on as a reason to sanction a journalist is further seen in laws that criminalize hate speech. These laws are being used to criminally charge journalists who report on hate crimes and the rise of supremacist groups. The redefinition of journalism and the expansion of speech-related crimes are leading to a decrease in the number of journalists, creating an extra-legal threat to reporting and access to media free from government control.
Kaye pointed to the Holocaust as another example of criminalization of a subject. In the US, Holocaust denial is protected by the First Amendment; however, in Europe, denial can be criminalized, highlighting that history in different parts of the world has different ramifications. At a global International Human Rights level, there has been a convergence of civil and political rights on racial discrimination regarding issues like Holocaust denial. There is agreement that, on the one hand, Holocaust denialism and other forms of hate speech need to be prohibited, but, on the other hand, speech should be subject to Article 19 of the ICCPR when deciding and analyzing what hate speech is prohibited. Throughout these decisions and analysis, Kaye says there should be room to use law to reflect on hate speech.
Additionally, Kaye warned about the criminalization of other forms of media through the designation of certain media as propaganda. A timely example is Russia and China’s control of propaganda in comparison to the United States’. In the U.S., different individuals might perceive certain news outlets to present propaganda; however, Americans and American lawyers acknowledge that it is important to think about the bigger framework and the reaction that would occur upon designating a news outlet as propaganda. Kaye remarked that certain countries would be more than content to follow the United States’ lead and exclude blogs, for example, as a certified media source, classifying them as propaganda. However, if the U.S. classifies a news outlet as propaganda, Russia, for example, would then classify news outlets like Voices of America or the New York Times as propaganda, using the label to exclude those journalists and media sources without a rightful reason. Russia thus takes the same actions as the U.S. but creates different rules and restrictions to fit its agenda. China behaves similarly. However, Russia plays along with the ideals of the international community since it is subject to international conventions for human rights, whereas China has excluded itself. The U.S. is not immune from behaving in a manner that could be perceived as on the same level as criminalization; major news outlets rely on anonymous reporting, allowing government officials to manipulate the news. Kaye concluded that there continues to be a need for more transparency, globally, to prevent the legal redefinition of journalism.
The second threat Kaye identified is increasing levels of surveillance. For instance, several governments have implemented Pegasus, which allows companies to have access to mobile devices, to thus have access a person’s life on their phone. This mass surveillance is occurring in democratic and non-democratic countries. The collection of data accessible to governments creates concern in particular for journalists who report on national security, criminal law, and corruption.
The third threat is the rise of social media, which Kaye said has threatened the future of media and press. The impact of social media on public life is far beyond what we see in the U.S. In countries such as Myanmar, Cambodia, and Bangladesh, the use of Facebook is equivalent to accessing a public square. Social media companies have adopted their own rules to define what is acceptable and unacceptable. This demonstrates that the power of companies could be equivalent to the power of states in enabling and disabling of freedom of expression and media.
Where do we go from here to foster a global atmosphere of protection of media freedom? Focus on accountability, said Kaye. Threats persist, as seen in Tijuana, Mexico on January 23, 2022, where a journalist was murdered because of her reporting on corruption. To prevent these tragedies, countries themselves require accountability mechanisms through domestic principles, laws, and institutions, which the international framework could influence. These accountability mechanisms must prevent governments and government officials from criminalizing journalism. Democracies such as the United States and Europe should use foreign policy, too, to demand respect for freedom of the press before signing treaties and other international agreements. Furthermore, the U.S. should set an example for the protection of media freedom with the creation of shield laws, with appropriate behavior that protects media freedom. The U.S. should strive to establish a positive environment for media freedom, which includes local journalism; minimal surveillance; rules surrounding access to journalists and their access to data; and transparent social media regulations that create a space for media freedom, privacy, and freedom of expression.
What lesson do the threats and steps forward impress on new lawyers and law students today? Kaye emphasized that new lawyers and law students should be open to random and unexpected opportunities. However, no matter the job a budding lawyer chooses, there should always be room in their public and professional life to be involved in international law and international organizations. As Kaye concluded, “It is a grim moment but grim moments for lawyers mean opportunities to do justice.”
About the Speaker
Professor David Kaye is a Clinical Professor of Law, Director of the International Justice Clinic, and Co-Director of the Fair Elections and Free Speech Center at UCI Law. Appointed by the UN Human Rights Council in June of 2014, he served as United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression through July 2020–reporting on various issues, including COVID-19 and freedom of expression, online hate speech, and the impact of Artificial Intelligence (AI) technologies on human rights issues. Professor Kaye authored the book Speech Police: The Global Struggle to Govern the Internet in 2019, which “explores the ways in which companies, governments, and activists struggle to define the rules for online expression.”
About the Moderators
Professor Nancy Amoury Combs is the Ernest W. Goodrich Professor of Law and Director of the Human Security Law Center at William and Mary Law School. Professor Combs is an expert in international law and international criminal justice and teaches criminal law, international criminal law, and human rights at the Law School. Before joining William & Mary Law School, Professor Combs served as legal advisor at the Iran-United States Claims Tribunal in The Hague, The Netherlands. She has published significant scholarship on various matters relating to the International Criminal Court and international ad-hoc tribunals. She is also the author of two books–Factfinding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Conventions (2010) and Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach (2007). Professor Combs graduated first in her class from the University of California-Berkeley Law School and clerked for the Honorable Judge Diarmuid O’Scannlain on the Ninth Circuit Court of Appeals and Justice Anthony Kennedy on the United States Supreme Court. In addition to her role as a professor, Professor Combs is currently serving on the Steering Board of Rethinking SLIC, a global research project that explores secondary liability for international crimes and serious human rights violations.
Rachel Sleiman is a law student at William & Mary Law School (J.D. ’23) and a Managing Editor and incoming Editor-in-Chief of the Comparative Jurist. Rachel is also involved as a staff editor on the William & Mary Bill of Rights Journal, research assistant to Professor Nancy Combs, and Student Bar Association Chief of Staff. As a law student, Rachel had incredible opportunities to intern for the Honorable J. Michelle Childs of the District of South Carolina in the summer of 2021 and extern for the U.S. Attorney’s Office in the Eastern District of Virginia in the spring of 2022. This coming summer (2022), she plans to intern for the Federal Public Defender’s Office in Columbia, South Carolina. Before coming to law school, Rachel worked as a paralegal specialist supporting the U.S. Department of Justice’s Criminal Fraud Section, where she mainly handled health care fraud litigation. Rachel hopes to pursue a career in litigation, and her education and experiences, which include majoring in International Studies and Anthropology at Case Western Reserve University and a semester studying abroad in Amman, Jordan, inspired her pursuit of a career in transnational law and human rights.
About the Human Security Law Center
The Human Security Law Center (HSLC) at William & Mary Law School centers on human rights, national security and international criminal justice and law. Its purpose is to provide students with an understanding of and appreciation for national security and human rights issues, particularly through the interplay between national defense and the protection of civil rights in both the domestic and global spheres. The Director of the HSLC is Ernest W. Goodrich Professor of Law Nancy Combs.
A Note about World Press Freedom Day
The Comparative Jurist published this article on World Press Freedom Day, which celebrates its twenty-ninth anniversary on May 3, 2022. Initially declared by the United Nations General Assembly in 1993, the day honors the anniversary of the Windhoek Declaration, a statement of press freedom principles drafted by African journalists at a UNESCO seminar in Windhoek, Namibia in 1991. Each year, the day highlights the significance of the freedom of the press, reminds governments of their duty to respect and uphold the right to freedom of expression, and commemorates the lives of journalists who have risked or continue to risk their lives to report the truth. Together, UNESCO and the Republic of Uruguay are hosting this year’s World Press Freedom Day Global Conference on May 2-5, 2022. This year’s theme, Journalism Under Digital Siege, highlights the “digital era’s impact on freedom of expression, the safety of journalists, and access to information and privacy.”
About the Author
Nancy Rosen is a law student at William & Mary Law School (J.D. ’23) from Toronto, Canada. In addition to being an Executive Editor and incoming Managing Editor for the Comparative Jurist, Nancy is also a 2L Assistant Chair on the Honor Council. Over her 1L summer, Nancy interned for the Constitution-Building Programme at International IDEA in The Hague, Netherlands where she researched and analyzed the constitutional history of Mali as well as the constitutionalization of the environment in Hungry, Kenya, and Tunisia’s Constitutions. Before law school, Nancy graduated summa cum laude and Phi Beta Kappa from Goucher College with a bachelor’s degree in International Relations and French. While at Goucher, Nancy studied abroad in Brussels, Belgium where she interned as a terrorism analyst at the European Strategic Intelligence and Security Center. Upon graduation, she taught English at an elementary school in France. Nancy is currently interested in practicing international law with a focus on human rights, security, and counter-terrorism.
 David Kaye, Presentation at the William & Mary Law School Human Security Law Center Media Freedom & Human Rights Symposium: The Future of Media and Press Freedom Globally (Jan. 28, 2022).
 International Covenant on Civil and Political Rights, art. 19, December 16, 1966, 999 U.N.T.S. 14668.
 Kaye, supra note 2.
 See, e.g., Zia Weise, How Did Things Get So Bad for Turkey’s Journalists?, The Atlantic (Aug. 23, 2018), https://www.theatlantic.com/international/archive/2018/08/destroying-free-press-erdogan-turkey/568402/.
 Over a month after this presentation, Russia invaded Ukraine, and as response to media attention, Russia decided to criminalize media. See Shannon Bond & Bobby Allyn, Russia Is Restricting Social Media. Here’s What We Know, NPR (Mar. 11, 2022, 1:57PM), https://www.npr.org/2022/03/07/1085025672/russia-social-media-ban.
 Lizbeth Diaz, Mexican Reporter Killed, Had Told President She Feared for Her Life, Reuters (Jan. 24, 2022, 12:58PM), https://www.reuters.com/world/americas/second-journalist-shot-dead-week-mexicos-tijuana-2022-01-24/.
 Kaye, supra note 2.
 Journalism Under Digital Siege: World Press Freedom Day 2022, United Nations, https://www.un.org/en/observances/press-freedom-day (last visited Apr. 10, 2022).
 Seminar on Promoting an Independent and Pluralistic Asian Media, Declaration of Windhoek on Promoting an Independent and Pluralistic African Press, U.N. Doc. CII.92/CONF.002/LD.9, KAZ/92/INF.3 (Aug. 10, 1992).
 World Press Freedom Day, UNESCO, https://en.unesco.org/commemorations/worldpressfreedomday (last visited Apr. 10, 2022).