Sunday, March 24, 2013

Most democracies allow limits to freedom

A commenter on the Fiji Today blog, where discussion actually ensues, points out that a clause in the Canadian Charter of Rights and Freedoms allows limitations on media freedom. It is brief, however, compared to the laundry list of limits allowed on media and other freedoms by the Draft Constitution of Fiji. Of course, journalists in all countries are subject to laws of the land, including, for example, court orders protecting the rights of accused persons to a fair trial. Section 1 of the Charter sets out that the rights listed in Section 2 are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Guarantee of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Fundamental Freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
This puts the onus on the courts to decide, according to legal principles and precedent, what is or is not a reasonable and/or justified limit on any right. There has been no shortage of arguing about this in the courts of my country over the past 30 years. (I have sat through endless hours of it.) This is in sharp contrast to the First Amendment to the U.S. Constitution, which states that “Congress shall make no law” limiting its listed freedoms. This has been interpreted by U.S. courts over the past 200 years or so to provide absolute protection of free expression, including hate speech, which has been limited in Canada. The Canadian Charter instead balances the rights of different groups in society, eg. of the press to report freely and of identifiable groups not to be subject to hatred, etc. In practice, most of the cases to result from limitations on free expression rights in Canada have involved Jews objecting to denial of the Holocaust. Some Americans find our laws against hate speech Frankly Ridiculous.

I have previously argued that Fiji has a perfect right to tailor its laws to its national needs without regard for regulatory trends in other countries. For example, in a fit of neoliberal enthusiasm, Australia recently removed restrictions on foreign ownership of media there. Fiji may decide that it instead doesn’t want foreigners (read a certain Australian) controlling its news media and may enact a regulation preventing that, as it did in the 2010 Media Decree. In Canada, we have been historically concerned about Americans controlling our media, but we didn’t want to pass a law that would be seen as restricting press freedom. Instead we passed a tax regulation that said only ads in Canadian-owned media would be deductible from income as a business expense, which has had the effect of discouraging – but not prohibiting – foreign ownership of Canadian media. Hypocritical? Maybe. Sneaky? Definitely.

Limitations on hate speech are certainly justifiable given Fiji’s fractious past and multi-cultural makeup. Such limitations would prevent much of the nastiness that has been seen previously in its media. Under the Draft Constitution, you literally could not say some of the things that have been said – and reported – in the past in Fiji. This is likely a good thing. Many would argue that the Draft Constitution goes too far in allowing limitations on press freedom. I would be one of them. The following allowable limitations are obviously designed to render the regime’s contentious Media Decree constitutional.
17.––(3) A law may limit, or may authorise the limitation of, the right to freedom of expression in the interests of––

(b) (ii) the rights of persons injured by inaccurate or offensive media reports to have a correction published on reasonable conditions established by law;

(h) making provisions for the enforcement of media standards and providing for the regulation, registration and conduct of media organisations.
The regime is intent on regulating media standards and conduct, which most democracies are loathe to do. It has done so under the 2010 Media Industry Development Decree, which sets out fines and even prison sentences for journalists who violate its nebulous provisions. Most media scholars, myself included, warn that this goes too far and unnecessarily restricts media freedom. Journalists will be deterred, if not prevented, from undertaking investigations which are an essential check on elected and non-elected power in a democracy. The Ghai Draft, of course, urged abolition or modification of numerous recent decrees enacted by the regime that would have been unconstitutional under its guaranteed freedoms. Its section on allowable limitations to guaranteed rights was actually very similar to that in the Canadian Charter. It provided that rights could be limited “only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” Rather than micromanaging rights and freedoms, as the regime attempts to do, this leaves the matter to the courts, which seems more reasonable.

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