As stated by the Inter-American Court of Human Rights: "It is the mass media that make the exercise of freedom of expression a reality." (Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion OC-5/85 of 13 Nov. 1985, Series A no. 5, 7 HRLJ 74 (1986).) The European Court of Human Rights has similarly emphasized:
"[I]t is ... incumbent on [the press] to impart information and ideas on matters of public interest. Not only does [the press] have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watch-dog'." (Thorgeirson v. Iceland, Judgment of 25 June 1992, Series A no. 239, para. 63; Castells v. Spain, Judgment of 23 April 1992, Series A no. 236, at para. 43; The Observer and Guardian v. United Kingdom (Spycatcher case), Judgment of 26 Nov 1991, Series A no 216, at para. 59(b).)
The European Court of Human Rights has made clear that these principles apply equally to the print and broadcasting media. The European Court of Human Rights has stated that it "considers that both broadcasting of programmes over the air and cable retransmission of such programmes are covered by the right enshrined in the first two sentences of Article 10 para. 1 ..." (Autronic AG v. Switzerland, Judgment of 22 May 1990, Series A no. 178, at para. 55.) The media's two essential public functions _ to inform the public about matters of public interest and to act as a watchdog of government _ do not impose duties on individual broadcasters. Rather, they impose a duty on governments to ensure the existence of conditions that enable the media to fulfil these functions.
Moreover, a government cannot insulate itself from responsibility for broadcasting by establishing a parastatal or semi-state media company; governments are held responsible for violations of media freedom committed by such semi-state bodies. (UN Human Rights Committee, Hertzberg, et al. v. Finland, Communication No. 61/1979, at para. 19.)
In the early years of radio and television, broadcasting in virtually every country (except the United States) was a state monopoly. In western Europe, private broadcasting systems were common by the early 1980s; and by 1993, Austria was one of the only countries in the region that retained a broadcasting monopoly. In that year, the European Court of Human Rights declared that Austria's broadcasting monopoly was unnecessary to accomplish a legitimate interest and, accordingly, that it violated Article 10. The Court noted that the State is the "ultimate guarantor ... of pluralism". It continued:
"Of all the means of ensuring that these values [namely, pluralism and freedom of expression] are respected, a public monopoly is the one which imposes the greatest restrictions on the freedom of expression .... "As a result of the technical progress made over the last decades, justification for these restrictions can no longer today be found in considerations relating to the number of frequencies and channels available .... Finally and above all, it cannot be argued that there are not equivalent less restrictive solutions; it is sufficient by way of example to cite the practice of certain countries which either issue licences subject to specified conditions of variable content or make provision for forms of private participation in the activities of the national corporation." (Informationsverein Lentia and Others v. Austria, Judgment of 24 November 1993, Series A no. 276, at paras. 38 and 39.)
Accordingly, a government has two options: either it may establish and implement a scheme for licensing private and community broadcasters that in fact grants airtime to a diversity of information sources and viewpoints, or else it must grant time on state stations for such diversity. In either case, as noted by one of the leading authorities on the International Covenant on Civil and Political Rights (ICCPR), "[w]ith regard to electronic media, [states] must above all provide for adequate public access." (Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Strasbourg: NP Engel, 1993), at 344.) Where there is a virtual state monopoly of radio or television broadcasts, the state "must strictly observe the duty of comprehensive, objective, impartial and balanced reporting and simultaneously ensure equal access for all groups of the population, including minorities." (Nowak at 356.) Moreover, the system for allocating licences or airtime must be fair and non-discriminatory, and the government may not interfere with the broadcasters' editorial independence.
Article 2(1) of the ICCPR states: "Each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Article 2 of the African Charter on Human and Peoples' Rights similarly obliges governments to ensure to everyone the enjoyment of fundamental rights and freedoms without discrimination of any kind.
Accordingly, given that governments are obliged to grant airtime to non-state broadcasters, the process for allocating such airtime must be fair and non-discriminatory. Moreover, in keeping with the state's role as "guarantor of pluralism", the state should ensure that a broad spectrum of viewpoints and programmes is aired.
Similarly, the states parties to the European Convention on Transfrontier Television (a treaty of the Council of Europe which entered into force on 1 May 1993) affirmed, in the preamble, "the importance of broadcasting for the development of culture and free formation of opinions in conditions safeguarding pluralism and equality of opportunity among all democratic groups and political parties" (emphasis added).
The European Court and Commission of Human Rights have made clear that governments may not interfere with the editorial decisions of private broadcasters regarding either the content of material or the manner in which it is conveyed. (Autronic v. Switzerland, Judgment of 22 May 1990, Series A no. 178, at para. 47. See also Brind v. the UK, App. No. 18714/91, adm. dec. of May 1994, at p. 8.) In like fashion, the states parties to the European Convention on Transfrontier Television, in the preamble, "reaffirm ... their commitment to ... the independence of broadcasters", among other fundamental principles.
Recent international documents recognize the positive obligation of governments to ensure that minorities are either able to broadcast programmes on the state broadcast media or else are granted licences so that they can broadcast on their own. This obligation extends in particular to national minorities _ minorities distinguished by ethnic or national origin _ and is even stronger where the national minority has lived within the territory of the state for a long period of time.
The obligation arises from the duty of governments to give effect to the right of persons belonging to minorities to freedom of expression and information, to enjoy their own culture (Article 27 of the ICCPR) and to enjoy, on a basis of equality, the rights to education, training and participation in cultural activities. Article 4(2) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by consensus by the General Assembly in 1993, declares that "States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs ...." (UN Doc. A/RES/47/135 (1993)).
Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination requires States parties to "guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of ... (e) ... (v) the right to education and training; and (vi) the right to equal participation in cultural activities ...." The obligation is further strengthened by the general duty of governments to promote tolerance and broadmindedness.
One of the most authoritative interpretations of international standards pertaining to minority rights is the UN report entitled Possible ways and means of facilitating the peaceful and constructive solution of problems involving minorities. (Report to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/ 1993/34, 10 August 1993.) Asbjorn Eide, the report's author, notes that the study is based on "principles contained in universal human rights law, concerned above all with the equality and dignity of every human being." (p.3, para. 1.) The report identifies various measures that governments should take, including the following:
"Majority groups should learn about the cultures of minority groups in ways which make it possible for them to appreciate those cultures as an enrichment to society as a whole.
"Members of different groups should enjoy the right to participate, on the basis of their own culture and language, in the cultural life of the community, to produce and enjoy arts and science, to protect their cultural heritage and traditions, to own their own media and other means of communication and to have access on a basis of equality to State-owned or publicly controlled media." (Addendum 4, UN Doc. E/CN.4/Sub.2/1993/34/Add.4, part II, paras. 11 and 12.)
These principles are developed at greater length in the Framework Convention for the Protection of National Minorities, adopted by the Committee of Ministers of the Council of Europe on 10 November 1994. Article 9 provides, in relevant part:
"(1) .... The Parties shall ensure, within the framework of their legal systems, that persons belonging to a national minority are not discriminated against in their access to the media. ....
(3) .... In the legal framework of sound radio and television broadcasting, [the Parties] shall ensure, as far as possible ..., that persons belonging to national minorities are granted the possibility of creating and using their own media.
(4) .... [T]he Parties shall adopt adequate measures in order to facilitate access to the media for persons belonging to national minorities and in order to promote tolerance and permit cultural pluralism."
The explanatory notes to Article 9 emphasize that paragraphs 3 and 4 create positive obligations to promote access of national minorities to the broadcast media, in contrast to other provisions which only impose negative obligations concerning the print media. The explanatory notes suggest that the measures envisaged by paragraph 4 "could, for example, consist of funding for minority broadcasting or for programme productions dealing with minority issues and/or offering a dialogue between groups, or of encouraging, subject to editorial independence, editors and broadcasters to allow national minorities access to their media."