What steps enable the development of free and independent media? This chapter from the book Media Matters examines the relationship between free and independent media and democratic institutions. Each step in political and legal transitions contributes to an enabling environment for independent media, which in turn promotes achievement of broader political goals. It is not only laws themselves that must be addressed, but the institutional structures administering them.
The formation of media law and media institutions is an important step in shaping an effective, democratic society. But these laws are often analysed in isolation. Each society has a cluster of activities, interactions of laws and a specific context, which makes these laws more or less effective.
NGOs have used a variety of techniques to support governments in fostering independent media, including training and direct assistance. Northern governments have also made small but significant efforts to address the need for legal structures that enable media reform.
The rule of law incorporates clarity and accessibility, legal norms, an administrative process of fairness, impartiality and objectivity and judicial support. Accessible and transparent laws are needed to facilitate the development of free and independent media. However, the gravest threat to media freedoms may come not from bad laws, but from administrative acts that apply laws arbitrarily or are outside of legal boundaries.
- The administrative process for licensing new media outlets must be open, objective and fair, with authorities acting according to prescribed standards. An independent, effective judiciary is essential for the oversight required.
- Civil society can also demand and help to oversee legal constraints on state power and the accountability of state actors. The increased role of civil society marks a shift from government to governance.
- The legal environment can particularly impact on media independence and effectiveness in the areas of: newsgathering; content-based regulation (operating for example through prior review censorship, conditions of market entry, and punishment for abuses of journalistic freedoms); content-neutral regulation (laws that are not targeted at editorial content but that can influence it indirectly); and protection of journalists’ job security and physical security.
- Public understanding, public perceptions and public demand for free and independent media are important.
- The state of the economy is significant to the extent that media independence depends on advertising and subscriber support.
In terms of legal norms and institutions, strategies which deserve consideration include: analysis of how economic legislation will affect the media; assistance of media law specialists to draft legislation; consultation with countries that have undertaken similar efforts; and development of skills for lobbying government. Further lessons for developing free and independent media are that:
- It is difficult to sustain excellent free and independent media without a public that appreciates the need for its output. Education, literacy, tradition, financial capacity and public demand all play a part.
- The major resource for enhancing the enabling environment is indigenous talent. Solutions must be local. One approach is to ask what forms of assistance are most useful in strengthening local media and what tools can facilitate an enabling environment.
- There are three main benchmarks for evaluating the language and context of media-related statutes in terms of the rule of law: simplicity and clarity, dissemination, and accessibility.
- Media law reform must aim to help develop a media-sensitive society. The public drafting and debating of media laws should educate citizens about the value and functioning of free speech and the role that the media can play.
