The Handbook of Communication Rights, Law, and Ethics. Группа авторов

the first two points, to Article 19 of the UDHR is striking. Perhaps the great innovation in both the UHDR’s Article 19, and that of the covenant, is that their third paragraphs clearly establish the responsibility related to the exercise of communication rights. Such responsibility already appeared in the Declaration of the Rights of Man and of the Citizen (1789), though, there, it was not identified as a communication right. The third paragraph of Article 19 creates a responsibility for communication rights, but on many occasions, it has not been truly understood, since it has been used as a basis for limiting that right.

      With the enactment of these two covenants, particularly the one on civil and political rights, the contents of the UDHR were reaffirmed. To be sure, other covenants, declarations, and resolutions have contributed to human rights, yet the passage of these two covenants in particular marks the final and definitive step in the establishment and defense of human rights related to information.

      Other Declarations to Consider

      In the previous sections, I have discussed the principal declarations of human rights at a global level. We must remember that one of the objectives of the UDHR was to serve as a basis for different supranational organizations and, later, individual countries to reaffirm its contents within national borders. Indeed, a series of declarations followed that reaffirmed the defense of human rights in different geographic areas of the world, with consequences for communication.

      The relevant declaration in Europe, for example, is the Convention for the Protection of Human Rights and Fundamental Freedoms, approved in November 1950. Based on the principles of the UDHR, Article 10 of this convention reaffirms the principal ideas of Article 19 of the UDHR, in nearly identical words:

      1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

      2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

      In my opinion, two years after the UDHR was approved, in which no restriction was contemplated, this European convention, together with the reproduction of the content of Article 19 of the 1948 declaration, initiated the promulgation of a series of restrictions on communication rights under legal cover.

      Another important statement was the International Covenant on Civil and Political Rights of 1966, which, in Abad’s opinion (2015, pp. 58–59), made it possible to correct the “shortcomings over the regulation of communication rights in the UHDR.” For this author, this document’s major contribution is its establishment in its Article 19 of limits on the exercise of UHDR Article 19 through its “emphasizing that the exercise of the right provided for in Article 2 (practically identical to UHDR Art. 19) entails special duties and responsibilities … and may be subject to certain restrictions that must be expressly set by law.”

      In Latin America, the most important declaration is the American Convention on Human Rights, which is also called the Pact of San José, since it was signed in San José, Costa Rica, in 1969. It entered into force on July 18, 1978. Article 13 refers to freedom of thought and expression in these terms:

      1 Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

      2 The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:respect for the rights or reputations of others; orthe protection of national security, public order, or public health or morals.

      3 The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.

      4 Notwithstanding the provisions of para. 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.

      5 Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

      For African nations, the document of reference is the African Charter on Human and People’s Rights. It was written by a group of experts appointed by the Organization of African Unity (OAU). In 1981, the draft was approved unanimously at the 18th Assembly of the OAS, and it entered into force in 1986. Articles 8 to 11 contain provisions related to freedom of expression (freedom of religion, assembly, and association), with Article 9 recognizing an individual right to share information and to express and disseminate opinions “within the law.”

      Among Arab-speaking countries, an Arab Charter on Human Rights was agreed at the League of Arab States on September 15, 1994, but no member state ratified it. The charter was updated in 2004 and entered into force in 2008, when seven members of the League of Arab States ratified it. Article 26 affirms: “Everyone has a guaranteed right to freedom of belief, thought and opinion.”

Finally, one must say that human rights law and human rights theory are very much alive and continue to develop around the world. Authors like Nussbaum, centering their theories around human dignity and the universality of what makes us “truly human” (2003, p. 41), propose that governments should ensure that people develop essential human capabilities that allow us to use our minds, imaginations, and thoughts “in ways protected by guarantees of freedom of expression” (Nussbaum 2003, p. 41) and that allow us to “participate effectively in political choices that govern one’s life” (Nussbaum 2003, p. 42). For this, communication rights must not only be guaranteed but actively fostered by states.

      Conclusion: The UDHR as the Basis for Modern Communication Rights

      This chapter began by analyzing the concept of freedom as a basis and foundation for human activity, particularly in the field of communication and, more precisely, information. With the struggle to ensure that states recognized rights and guaranteed the freedom to exercise them rather than simply granting limited rights to citizens, communication ceased to be regarded simply as an attribute of freedom and instead became the object of bona fide communication rights. Humankind’s tenacity gave rise to successive and ever more complete declarations of the essential rights that make one human.

      The UDHR invoked freedom as a natural support for the right to information. This chapter concludes with a focus on that document as a foundation for communication rights, as well as the foundation for a set of legal and ethical norms that led to the development of what is conceptualized here as subject, object, and contents. This was an essential step forward in the characterization of communication as a right.

      As pointed out, the UDHR is a text that has ethical authority but no legal support or guarantees of legal implementation. Some might have thought this would pose a challenge to the formulation of communication rights. Nothing could be further from the truth, since the declaration has contributed to the progressive constitutionalization of this right in countries with a Napoleonic legal tradition, and it has served as a legal precedent to guide legal decisions about communication issues in countries