The Freedom to Publish
By BENGT LASSEN Court of Appeal Judge (ret.), Publisher
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
(Article 19, Universal Declaration of Human Rights.)
There are differences in the social and economic structures of the various countries involved; in different stages of economic and political development the needs of a country may vary; and there are in existence conflicts between ideologies which do not necessarily correspond to the ideological conflict which is generally referred to as one of the reasons for the "cold war". — — —
In no country are the legal concepts static.
(Hilding Eek in his report to the United Nations on developments in the field of freedom of information since 1954, publish edas Ecosoc E/3443, 2 February 1961.)
— —: rara temporum felicitate ubi sentire quae velis, et quaesentias dicere licet.
(Tacitus, Historiae, I, 1.)
Leicht bei einander wohnen die Gedanken,
Doch hart im Raume stossen sich die Sachen.
(Schiller, Wallensteins Tod 2, 2.)
There can be no doubt that the freedom to publish is a topic of vital interest to publishers all over the world, for their very ability
to stay in business depends on the extent of this freedom. But to say this is not to say all that should be said about the importance of the subject. The freedom to publish is a part, and a very important part, of the spiritual freedom without which no culture that is worthy of the name can flourish.
Yet at the same time it is a subject which presents formidable difficulties to the investigator; above all it seems to be far from easy to provide a comparative survey of the conditions prevailing indifferent countries as to "The Freedom to Publish". No one should imagine that it is a simple matter to try to render an account of the situation with regard to what might seem to be very simple questions, such as, for example, the length of the period of literary protection, or tariff rates. But I believe, on what I hope to show are good grounds, that the present subject presents quite unusually great difficulties to anyone attempting a fair international comparison.
In the first place one has to define the subject. This does not concern the relationship between authors and publishers: whether publishers have what may appear—at any rate in the eyes of authors—too great a disposition to refuse manuscripts, whether the royalties are unsatisfactory, whether the editions have to be severely limited in size and numbers, etc. It is true that these matters do also concern the freedom to publish—in a broad sense. But in the main they must depend on such circumstances as the size of the market, the situation with regard to competition, and so on. Here it is necessary to impose a strict limit on my survey, a limit which will already have been made clear by the questionnaire sent out to national organizations.1
Our first concern must be to try to investigate the legal approach to the principle of freedom to publish. The system of press freedom that we are accustomed to call "western" has as its fundamental principle that of freedom from prior censorship. It is true that freedom to publish is nowhere absolute2 but the limitations must,
if the legal situation is to be regarded as of acceptable standard, be based on law. This latter requirement is extremely important. But there have been cases where legislation which is in a formal sense impeccable has resulted in an undesirable restriction of freedom. If the degree of protection accorded by legislation to various interests, public or private, against attacks in print is too great, little will remain of the freedom of the press. Thus, it is not sufficient to state that the restrictions on the liberty of the press are based on law; it is also necessary to inquire into the nature of these restrictions.
When considering the legal aspects we must go a step further still. After establishing what the rules of law are, we must see how they are applied. In all the areas of social life which are regulated by laws it is a fact that some discrepancy—whether large or small—exists between the laws and their application. And probably there is scarcely any area where this discrepancy—in certain countries—is greater than in the case of the freedom of the press. Here I am disregarding the fact that the application may vary from time to time, often quite rapidly, because of changes in the political system or for other reasons. Even in a quite stable community there may exist a very wide difference between the statutory provisions—or rather their actual wording—and their application. The reasons may be many: certain provisions may in the course of time have become obsolete—or have come to be regarded as obsolete—as a result of changed conceptions or through actual non usus; special rules of procedure in cases involving offences relating to the freedom of the press may make it difficult to obtain permission to prosecute; special rules on penalties, damages, confiscation, etc., may also interfere. It is, of course, extremely difficult to arrive at a picture of the situation prevailing in this respect in various countries that will meet even quite modest requirements of completeness and fairness.
It may perhaps be thought that I have already made this subject sufficiently involved, but in fact we cannot stop here. If the picture presented is not to be altogether misleading, we must look into a number of practical questions apart from those concerning laws and the application of laws, questions which may be just as important for the freedom to publish. Let me mention an example.
So far as I know England was the first country in the world to
introduce freedom of the press. This happened in 1695, when the Licensing Act of 1662 which had established a censorship was no longer renewed. But Parliament in those days did not support the freedom of the press unconditionally, although it had found that the censorship was not appropriate; and many years later, in 1712, it approved of a fairly high stamp duty on printed paper. It is true that this measure was far from being equivalent to reintroducing censorship; nevertheless the matter had very important restrictive effects, in as much as several newspapers had to cease publication owing tothe increased costs. Rather more than a century later, in 1836, the stamp duty was reduced and one of the consequences was that the number of newspapers published rapidly rose once more. The duty was abolished altogether in 1885.
Today, too, it is possible to impose an effective limitation on the freedom of the press even when the legislation which formally controls this freedom is not open to any objections.
For example, it is possible to control more or less strictly the sale of the products which contain the printed word. Let me once more take an example from England, since in that country the history of the freedom of the press is not only rich and honourable but also has been the subject of thorough research. At the beginning the printing of books was in England, as in most other countries, a royal prerogative. The privileged printers were gathered together in the London Stationers' Company. This company was naturally concerned to safeguard its monopoly rights and was thus a very effective instrument for controlling the freedom to publish.
It may also happen that governmental activity in publishing (for instance maps, schoolbooks, publications issued by authorities, etc.), printing and distribution expands into ever wider fields. In this anactual restriction to publish may be established within certain sectors.
Finally—and this is already extraordinarily important and will become even more so, especially if the matter is viewed from a global point of view, as it should be—in almost all countries the new mass-communication media which compete with the printed word—films, radio, television—are either directly run by the government or at any rate under very strict government control as regards their programmes, administration and finances. Not only do these mass-communication media, above all television, constitute the most effective means of working on the mentality of the citizens, but also they do not require literacy on the part of those to whom they are directed. The degree of effectiveness of these media will therefore be particularly high in those countries where illiteracy is widespread and there
is little if any possibility of establishing contact through the printed word. But even in countries with a satisfactory degree of literacy the mass-communication media are obviously of extraordinary importance from the point of view we are now concerned with.
It will, I hope, be seen from this short account of how in my opinion an investigation of the freedom to publish should be conducted that, as I said in my introduction, the task is by no means an easy one. It is not a question of an investigation on a purely legal plane; side by side with this there is required a sociological study that will be deep as well as wide in scope.
In the circumstances described, I have not been able—and indeed have not tried—to give a full and satisfactory report of the situation regarding the freedom to publish in the world of today, not even in the member countries. Nor have I tried to give a more general survey with respect to current problems that are of importance from the point of view of principle. Instead, all that I have been able to do is to assemble from the replies various items which might from different directions throw lights upon the question under discussion.
It is, of course, not for me to make a critical evaluation of the replies obtained, but only to be grateful for the kind cooperation I have benefited from; nevertheless I consider that in this context I ought not to omit to point out that in certain cases I have noted a tendency in those giving answers to make the best of the situation prevailing in their own country, to defend deficiencies that may existin the freedom of the press and its exercise—or not to mention them at all. This, of course, is connected with the fundamental acceptance among those supplying the information of the principle that as great a degree of freedom as possible ought to be present: those concerned are "wishing away" any restrictions and other shortcomings, hoping that they will not prove real. Moreover, there is of course at work a healthy and in itself commendable spirit of patriotism.
I wish to point out one more thing before I pass on to a summary of the replies received. In a report such as this there will also arise the question: Can the situation which prevails in this or that country be regarded as satisfactory having regard to the requirements as to the legal standards concerning the freedom to publish—or other standards of freedom—which have been set up by "informed opinion" or "the free western world" (where it is at its best) or more concretely, by Article 19 of the Universal Declaration of Human Rights? Moreover, it is unavoidable that the conditions in one country should be compared with the conditions in another,
and there will be an evaluation as to whether the freedom is greater in the first country than in the second, or vice versa. It was in view of this that I have put as a motto at the head of this report a quotation from the excellent report of Professor Eek to Ecosoc on "Developments in the field of freedom of information since 1954". It is, of course, extremely important that standards should be set up for the freedom in various respects which we are trying to get established and respected all over the world. Thus, the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on 10 December 1948 "as a common standard of achievement for all peoples and all nations" (Eek, p. 10). The setting up of these standards implies a presentation of norms from above and from outside, arrived at of course on the basis of experience in the different countries but nevertheless after due generalization and after a number of special presumptions in political systems formulated along different lines have been subjected to a critical review.
One can follow Eek with approval when he says on page 149: "The Law may be regarded as the confirmation of certain standards of behaviour in community life that correspond to general developments in the political, economic, social and cultural fields. In a world where nations are in different stages of development and some in a process of rapid change, and where the structure of society differs from country to country, or from region to region, it would be unrealistic for any one country or group of countries to try to force one legal concept, formulated in the first instance for domestic use, upon others."
The most important thing, however, will be how freedom flourishes and how it can be enjoyed in the community when this is regarded from within, what advantage the individual derives from his freedom, whether from restrictions of this freedom in this or that respect he can gain some other important benefit, e.g. his daily breador salvation from political chaos. It is of course extremely risky to hold and to put forward such views since they will fall like sweet music upon the ears of many of those enemies of freedom whom one finds everywhere (and the enemies of freedom include those passive people who are not prepared to fight for freedom), but it is a point that it is necessary to make. The representatives of the so-called western free world must beware of getting on their high horse and of criticizing too harshly the state of freedom in the developing countries or elsewhere. Such judgments may so easily become anachronistic. It is all too easy for us to forget that our own freedom,
on which we so often pride ourselves, is very new and that in our cases, too, the progress has gone in waves. After periods of increased freedom have followed restrictions; after the abolition of the censorship in England in 1695 there came, as already mentioned, the prohibitive stamp duty of 1712 on printed paper and a very restrictive practice in the courts; the first Freedom of the Press Act in Sweden in 1766—as result of which Sweden ranks second in point of time in this respect—did not survive the eighteenth century; the freedom of the press which is proclaimed in the celebrated Déclaration des droits de l'homme et du citoyen of 4 August 1789, when the great Revolution was still young and libertarian, was savagely curbed by the revolutionary dictatorship after only a few years; of all the "old" declarations of rights, only that which was made on 12 June 1776 by the State of Virginia and of which the present-day counterpart is the amendments of 1791 to the American Constitution has survived. Let us hope that it may continue to do so, both formally and in reality.
The criterion of a true freedom of the press, as I pointed out in the first paragraph in my questionnaire, is freedom from prior censorship. When freedom of the press was introduced, it took place through the abolishing of an existing censorship. Now it may naturally be the case that a prescribed censorship is not functioning or that it is applied liberally—whether consciously or owing to the inefficiency of the system. In that case, of course, there is an approach to freedom from censorship but nevertheless the censorshipis not perhaps entirely without effect: it is there, and it can come into operation rapidly should the attitude of the authorities change or should the efficiency of the system increase.
But censorship, which is an administrative procedure, must not be confused with the Anglo-Saxon institution known as injunction. If an individual has good reason to believe that matter is about to be published that will give him a right of action, he may apply to acourt for an injunction to restrain the publication. This seldom happens, however, probably because the procedure in such a case would involve the trial of the issue itself, which the court would be reluctant to occupy itself with in this way. It could be used, it is said, when a person had been successful in an action for civil libel and where the defendant was known to be about to repeat the libel because the damages were not penal. From this description it will be seen what is the essential difference between censorship and in-
junction. Injunction presupposes a judicial examination of the legality of the (future) writing in the same way as would take place in a subsequent action against the (published) writing.
In order that freedom of the press shall be considered to possessa satisfactory legal basis, the freedom from censorship must be supplemented by the fulfilment of the requirement that any possibility of intervention against the printed matter after publication shall be based on a statutory provision currently in force and that only a court may, after a fair trial, punish any offence which may be implied in the printed matter. It is this which in Anglo-Saxon parlance passes under the description of the Rule of Law.
These restrictions of the freedom to publish under the penal code or other law are traditionally placed under certain categories, namely those which are intended to give protection to:
(a) the individual against infringements of his honour, other markedly personal interests, etc. (libel etc.);
(b) the community—and there with the individual—against the dissemination of what is usually called obscenity, pornography, indecency or the like;
(c) the state as regards internal order (incitement to disobedience of the authorities, incitements of crime, etc.)
(d) the state with regard to external security (treason, attacks on a foreign power, etc.).
In the free countries these restrictions are in general few in number. And as I have already mentioned, a true freedom of the press is dependent on the restrictions not being too numerous. In certain countries the main emphasis is laid on one or several of the above mentioned categories, while others perhaps receive less close attention. As far as groups (c) and (d) are concerned, the current relations of the country in question with the rest of the world must, of course, play a great part. No country which is in a delicate situation, from the point of view of domestic or external policy, could fail to give special attention to the contents of printed matter from the viewpoints which underlie the groups in question. If there is war or a danger of war the need to take compulsive measures is exceptionally strong; then other considerations, which in less troubled circumstances are taken account of, have to give way. It is, however, regrettable that after provisions have been tightened up because of war or the danger of war it often proves very difficult to remove these provisions once the situation has become more normal.
Side by side with this, it is necessary to take into account another
consideration. We can of course disregard such dictatorial systems—nomina sunt odiosa—which have considered and still consider that the freedom to publish is dangerous (quite correctly from their own point of view). There are other countries—how one describes their regimes is a matter of one's personal attitude—which have an intellectual culture of high standard but which consider it to be the duty of the state to protect the citizens against what they consider to be harmful influences, not mainly and directly for political reasons but for moral and religious reasons. I need not mention any names with regard to this group of countries either, for it to be understood that the approach to the freedom to publish which prevails in them must be different from what it is in the truly "liberal" countries even if perhaps this is not specially noticeable in the legislation.3 In the "liberal" countries, too, demands for censorship are sometimes put forward by groups which have puritanical views as to what is to be regarded as "immoral".
Demands for censorship or at least expressions of a certain sympathy for censorship have been put forward for quite different reasons. It has been said that such an idea—most regrettably—has not been altogether alien to certain English publishers who prefer safety to freedom of judgement. Even if one takes into consideration the intricate rules of English law in this sphere and the high costs of litigation, any suggestion of this kind must be firmly rejected.
Item no. 2 in the questionnaire was a question as to whether the legal rules concerning the freedom to publish had been given a specially favourable position in the legislation, for example as a part of the constitution. Those familiar with the field will of course guess that the reason for this question is to be sought in specifically Swedish conditions. In Sweden provisions regarding the freedom of the press have been part of the Constitution since 1766. This is believed to be the first time that the freedom of the press was provided for in the constitution of a country. The current Freedom of the Press Act of 1949 is also of constitutional character. What this
means is only that the procedure for carrying through amendments is more complicated than it is with an ordinary act. Special guarantees are provided against hasty and insufficiently considered amendments. A number of provisions of a more detailed character concerning the freedom to publish have, too, acquired this special legislative sanctity.
I do not believe that too much attention should be paid to the circumstances just described. Experience shows, unfortunately, that the embodying of a freedom, a right, a principle, in a country's constitution is not worth very much if conditions become disturbed, if the country enters into a period of difficulty. The special legal status is intended mainly for normal conditions. But so long as a country remains undisturbed it is probably not very important whether a given provision is contained in the constitution or in an "ordinary" law. Traditions and the attitude to formal legal problems vary so widely. Britain has no written constitution, nevertheless conditions have been more stable there than in most other countries. In Britain a citizen can in principle do anything that is not prohibited by Common Law or by statute. From the replies received it would also seem to depend on chance—or shall we sayon legislative traditions—whether the protection of the freedom to publish contains the enhanced standing that one would like to think is conferred by embodiment in the constitution. The following maybe stated by way of example.
Among the states which have the freedom of the press written into their constitution the U.S.A. should no doubt be mentioned first of all, if for no other reason than that the provisions are of such venerable age. A foreigner has, moreover, a general feeling that in the United States the written constitution is regarded with aquite exceptional respect and reverence. The long and uninterrupted constitutional history of the Union is also something which is highly remarkable. It is true that the Constitution did not at first contain a provision on freedom of the press, but is was not long before the principle was introduced through the so-called First Amendment of 1791 which forbade the Congress to restrict the freedom to publish. These fundamental tenets of American democracy have been extended to all states of the Union through the Fourteenth Amendment. In addition to the Federal Constitution, State constitutions have also reaffirmed the basic guarantees of freedom of speech and freedom of the press. Our American colleagues, in their answer, say that, along with freedom of religion, there are no guarantees held more dearly by the American public than these.
All in all, it is very difficult to determine both the type and the scope of the legal regulation of the freedom to publish in a country merely by reference to the provisions which bear directly on it. With the freedom of the press it is the same as with other juridical questions: for a proper evaluation it is necessary to have a complete view of the whole legal system. If we take as an example the provision in Article 5 of the constitution of the German Federal Republic—the Bonn Constitution of 1949—we find that this guarantees to everyone the right freely to express and to disseminate his opinions in speech, writing and pictorial form and to inform himself without hindrance from generally accessible sources. "There shall be no censorship." These rules should, however, be read together with the provisions directed against attacks on the fundamental free democratic order. Thus Article 18 says, inter alia: "Whoever abuses the freedom of expression of opinion, in particular freedom of the press (Art. 5, sec. 1) . . . forfeits this freedom. The forfeiture and its extent will be pronounced by the Federal Constitutional Court."This statute represents the result of some very serious deliberations about the best way of preventing the enemies of democracy from making use of democratic rights in order to undermine democracy itself. The problem has unquestionably acquired a much greater urgency in our days than it possessed during the period—the Ageof Reason—when the modern western principle of freedom of the press first emerged in earnest. There is a celebrated, although apparently apocryphal, remark made by Voltaire to a certain writer: "I disapprove most strongly of the views you have expressed, but I am prepared to defend with my life your right to utter them." The guarantees in the Bonn Constitution against the misuse of democratic rights is in conflict with this Voltairian pronouncement. It may be that Voltaire's attitude is now considered out of date. Perhaps this development has been inevitable. In that case it is, like so many other things we have experienced in these times, to be regretted.