My Remarks at a CIMA Conference on Restricting Press Freedom

October 21, 2011 2 comments

License to Censor

The Use of Media Regulation to Restrict Press Freedom

When CIMA asked me to survey journalistic licensing practices around the world, the subject seemed both new and familiar. Licensing. I remember that issue. Whatever happened to it?

The answer is: It’s still alive and well. My colleague, Craig Thompson, and I broadly surveyed a variety of countries around the world, more than 100 in all – nothing scientific, but we took a sampling of the rich, the poor, east, west, north, south. We were rather surprised to find that roughly one in four exerted some control over who may enter the journalism profession and who may not. I say we were surprised because the issue of licensing is not exactly a hot one these days – at least not as hot as it used to be.

Now I think it should rank higher on the agendas of organizations that are promoting independent media. Just take a look at some of the trends that are developing as we meet:

First, journalism is in the midst of a transition to electronic media. Governments are just coming to terms with the impact of freewheeling online news sites and blogs. These are supplementing and competing with the comfortable old news institutions that bureaucrats have regulated for years. After the Arab Spring, you can surely bet that many governments have begun gaming ways to control these new media entrepreneurs.

Second, electronic tools are putting the power of journalism into the hands of citizens as well as professionals. Anybody with access to a cell phone – and that’s just about everybody in the world – now has the power to gather and distribute news beyond the reach of government censors.

As we know, there are plenty of international training organizations teaching citizen groups to do just that. These citizen journalists have great and powerful gathering places on Facebook and Twitter, and we’ve seen their influence from Iran to Cairo to Damascus. Once again you can be assured that governments are focusing on ways to monitor, supervise and limit this traffic and the people who are generating it.

Finally, there still is a battle for freedom of expression going on in the world today, and licensing practices are at the center of that battle. International training organizations have a part in that fight. When they oppose restrictive media laws and licensing regimes, they support international standards. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both include the right to free expression.

Given these trends, why isn’t licensing more of an issue these days? Probably because, since the end of the Cold War, the world as a whole has been moving in the direction of more individual freedom and international cooperation. But our survey identifies one more trend: A lot of governments are trying to have it both ways – adopting international standards while also keeping their journalists under control. And after the Arab Spring, this trend is likely to gain strength.

What do we mean by licensing? Craig and I focused on relations between governments and journalists. We defined licensing as all the ways governments – and the journalism establishments they favor – have a strong say in determining who may practice journalism and who may not.

In some cases, governments merely set parameters for the job – minimum age, education level and national origin of prospective journalists. In others, governments explicitly issue press cards only to journalists certified to follow the official line.

Licensing exists in democracies that consider journalism to be a profession on the level of doctors and lawyers. It retains a place in many Latin nations, where journalists themselves fight for laws that keep their profession strong and exclusive. It still plays a role in the developing world, where governments feel they must control the power of the press as an element of their countries’ domestic and national security.

And its traditions still help shape media policies in some of the remains of the communist world. China has been experimenting with all manner of ways to put the clamp on independent journalists online and offline. And Russia is looking more and more like the old Soviet Union, where licensing regulations were not explicit, but where controls on the journalism profession were of course total.

It’s an issue here in the United States, as well. The journalists who fight for a legal shield allowing them to protect their sources must also contend with a government defining who qualifies as a journalist eligible to receive that protection.

One lesson to take from our study is that you can’t look at licensing as an ideological question – pitting good democracies against bad autocracies. Licensing is an issue anywhere governments and journalists themselves are having trouble defining who a journalist is in the electronic age – and that’s everywhere.

It used to be so much simpler. The issue of  licensing the media became a fulcrum of the Cold War. The Third World called for a “new world information order” of nationally controlled media. The West fought against that as a communist plot – which in many ways it was.

These days, we don’t worry very much about communist plots. But that has made the licensing issue more complicated.

It’s very complicated. In some countries, establishment journalists themselves control access to the profession. This is so in Italy, where an overwhelming majority of professional journalists are admitted to the profession only after completing a regimen of courses and passing written and oral exams. Journalistic entrepreneurs can start up online operations in Italy, but they are shunned and excluded by professional journalists in the established media.

In Brazil, journalists are fighting a court decision that overturned the law requiring a journalism degree to practice in the country. Professional journalists demand the protection of such a law. They argue that publishers pushed for its abolition in order to weaken the pay and protections of professional journalists.

Authoritarian states are a much bigger problem. Zimbabwe licenses journalists, requiring them to be accredited to the publication they serve. But that is one of the lesser inconveniences in a nation that harasses private media companies, arrests an editor for publishing the work of an opposition leader, taxes newspapers as luxury items – and permits journalists to be assaulted, kidnapped, and in at least one case murdered.

Then there’s a country like Rwanda. In Rwanda, they regulate journalists. But the lessons of history make it hard to argue against attempts to regulate and increase the professionalism of journalists there. In 1994, everybody remembers, print and broadcast media outlets spurred on and celebrated the bloodshed of that horrific genocide.

Rwanda shows that there can be no one-size-fits-all solution. But I can suggest one general standard. To the extent that the journalism profession must be regulated, it should be regulated by journalists.

Ghana shows a way forward for developing countries worried about the maturity of their media. Its National Media Commission, elected by management groups, unions and other sectors of the society, operates free of government control and exercises little more than persuasive powers over the country’s booming private media sector. It deals with problems from hate speech to pornography, but it does so by exerting the moral weight of the profession on any offenders.

How can media organizations on the outside have a role in developing licensing policies? Here are a few ways that might help:

1. Link free expression to a free press. If a country adopts global standards of free expression, it should apply them to its journalists.

2. Promote journalistic self-regulation. Societies worried about the disruptive potential of unregulated journalism can adopt systems like Ghana’s, in which a commission embodying the society’s highest media ethics sets the standards.

3. Train journalists in developing countries in the skills of ethical journalism: fairness, transparency, verification. Journalists educated in professional standards will create an ethical journalism that assists nation-building.

4. Defend online journalists, including citizen journalists. International groups can attempt to head off the regulators before they get started.

In the end, the test for those promoting independent journalism should be how a licensing policy restricts entry into the field. Does a government policy allow fair access to anyone who qualifies according to objective standards? Journalists can build their skills and work their way around all kinds of reporting obstacles – as long as they have the right to work independently.

*****

Note: In rereading these remarks in March 2017, I discover that I conducted this study assuming that independent journalism requires a search for the truth.  Everybody agrees with that, right? Hah! Not these days. We are all familiar with governments that require journalists to stick to the party line. But now we have journalistic organizations, pursuing profits in a niche audience, that hire only journalists who strive to bend and shape facts to fit an ideological line. All this under the political shelter of a U.S. president who almost proudly spouts lies and (to use Fareed Zakaria’s term of art) bullshit to create an aura of legitimacy. In the era of “fake news” and “alternative facts,” I have to add a new item to the list of things we can do to encourage independent journalism:

5. Defend journalism itself as a profession dedicated to respecting facts and seeking the truth.

Who ever thought it would come to that?

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Categories: Uncategorized

Registering Reporters: How Licensing of Journalists Threatens Independent Media

April 7, 2011 1 comment

Here’s the link to my final report, published by the Center for International Media Assistance.

First Draft

My report for the Center for International Media Assistance is now in draft stage, so I won’t be filing too much more on this site. Many, many thanks to all of the wonderful people who helped me as sources. After CIMA publishes my report, I will post the link here. Steve

Categories: Uncategorized

A Summary of This Report

Here is a brief sketch of the themes in my report:

How should a society choose those who can be trusted to use the power of the press? For a time after World War II, many developing countries emerging from colonialism thought they had the answer: governments should license journalists to support the crucial work of forging modern national identities. In a world of violently competing political ideas, these governments carefully vetted those who would be given access to the mass media. Freedom of the press was considered an unaffordable luxury. New countries attempting to find stability inside and outside of their borders needed a press that promoted patriotism, unity and strong government.

Today the international landscape is different. In a more commercial, global world, propaganda and ideological wars have lost some of their edge. The mass media are losing their institutional exclusivity, breaking down into smaller niches and broader networks in which a lone operator can build the authority of a professional journalist. This is also, generally speaking, a democratizing world, in which developing countries are giving more weight to openness and freedom of expression. As a consequence, the issue of licensing journalists – at one time the subject of loud Cold War disputes – has lost some of its prominence. But it has not gone away. This report will demonstrate that those committed to independent journalism and freedom of expression should continue to pay close attention to licensing.

In fact, licensing continues to thrive as one way (among many) used by governments to control the press. This report examined the regulatory practice in more than 100 developed and developing countries around the world and found that in at least 1 out of every 4, governments had a role in licensing – that is, in approving who could work as a journalist and who could not. In some cases a government merely set parameters for the job – minimum age, education level and national origin of prospective journalists. In others, the government explicitly awarded press cards only to journalists certified to follow the official line.

Licensing exists in western democracies that consider journalism to be a profession on the level of doctors and lawyers. It retains a place in Latin nations, where journalists themselves fight for laws that ensure the exclusivity of their profession. It still plays a role in the developing world, where governments feel they must control the power of the press as an element of their countries’ domestic and national security. It helps stoke the militancy of the Arab states confronting Israel. And its echoes still help shape media policies in some of the remains of the socialist world.

If anything, the inclination to define who is a journalist may grow more tempting for governments in the Internet age. The question is gaining more importance in western countries that have adopted shield laws that protect journalists from revealing confidential sources. Who is, and who is not, a “journalist” eligible for this protection? Similar questions are emerging everywhere as Internet communications expand. Among the growing masses of bloggers and online news providers, who deserves to be recognized as a journalist and who does not? And who should have the power to answer that question?

Although a government may feel that only it can give the answer, the ultimate principle must be clear: to the extent a government interferes with a free press, it also damages freedom of expression. This study suggests that organizations of journalists themselves are best equipped to regulate the ethical and professional standards of journalism, whether in the old press or the new media. Governmental and non-governmental organizations can best contribute by helping to educate journalists entering the field and enhancing the professionalism of working journalists. Media laws should make a distinction between the regulated media and the Internet, allowing online journalism to develop and flourish freely.

If freedom of expression is a valuable tool in healthy societies, as most of the world now acknowledges, then so is freedom of the press. At the heart of a healthy press is its independence. This study is biased against any government policy of licensing journalists. Any such policy that does emerge should be examined in light of one key question. Does it foster an independent press?

What to Do About Licensing

In an earlier era of media development, when the world was divided between East and West, the policy of licensing journalists had an ideological tinge: licensing was a way to enlist the profession in the cause of nation building. Today licensing survives in a variety of national efforts to control the media and to empower journalists themselves. And a form of licensing seems likely to continue as governments seek ways to define journalists in the Internet age.

Yet the forces encouraging press freedom also are gathering momentum. The movement to foster independent journalism around the world rides on the progress of democratization that began with the fall of the Soviet Union and the spread of international standards of human rights, including free expression. In short, history appears to be clearing the way for press freedom.

In that light, the approach of development organizations toward the media oppressors of the world – Sudan, Zimbabwe and others – is clear: any organization that supports independent journalism should oppose the media policies of such governments and fight to change them.

But most cases are much less clear. Should media development organizations fight against Rwanda’s efforts to restrict who can practice journalism, given that country’s history? Should development organizations insist on an unfettered press in Jordan, if that would mean more prominence for radicals preaching war against Israel?

Instead of opposing licensing per se, media development organizations may do better to devise policies that will make licensing unnecessary or irrelevant over time. These media development policies might include:

– linking free expression to a free press. The growing number of countries adopting the major global and regional human rights covenants should constantly be educated on how these rights apply to journalists.

– promoting journalistic self-regulation. Societies concerned about the disruptive potential of unregulated journalism can be encouraged to adopt systems like Ghana’s, in which journalists regulate themselves – maintaining fairness and responsibility without government interference.

– providing journalism education. Licensors that require journalistic degrees give international media developers an opportunity to enhance the professional preparation of journalists. In any system, education is the key to enhancing a profession that needs well-developed attributes of reporting and writing – and also of fairness and transparency.

– defending online journalism. Developers can work to ensure that media laws, including licensing regimes, recognize the value of online journalists working alone or in small groups while at the same time freeing them from onerous restrictions. That would keep the latest journalistic medium relatively free of regulation and preclude the harassment of bloggers on grounds that they have not registered as journalists.

There is little doubt that international media developers should be biased against licensing; journalists have to worry about any government that defines and regulates them. But the test for those promoting independent journalism should be whether a licensing policy restricts entry into the field. Does a government policy allow fair access to anyone who qualifies, by earning a college degree, for example? Or does the policy allow a government to pick and choose who is considered worthy of being a journalist?

In the end, media developers may not have to expend much energy fighting licensing regimes because the policies may be fading away all by themselves. Their main champions are old-fashioned despots, and the policies themselves have the feel of Cold-War relics. The world is heading into a complicated new era when citizen journalism, transnational journalism, crowd-sourced journalism, viral journalism and who knows what other changes are going to radically upend the way journalism is practiced around the world. If media developers can help introduce these changes (in part by helping to shape government policies) and train the new generation of digital journalists, then the old license regimes will become outmoded and eventually fade away.

How Governments Define “Journalists”

There is a wild card in any contemporary discussion about licensing journalists: the spreading power of electronic communications. The world has witnessed the rapid growth of Internet access and the proliferation of sites ranging from individual blogs to sophisticated online news services. That comes along with rising cell phone usage, text messaging, cable television and digital radio. Governments have just begun to consider the regulatory implications of this explosive new power.

The question that lies at the heart of licensing has new resonance at a time when anybody with an Internet connection can command a worldwide audience. With so much news and analysis available, who is a journalist?

That’s not an issue that concerns only despots. In the U.S. state of Michigan, for example, state Senator Bruce Patterson has introduced a bill to register journalists. Those with a degree in journalism, three or more years of experience, at least three writing samples, awards or recognition for their work, “good moral character” and acceptable “ethics standards” could apply to a special board for registration as professional journalists, a credential that supposedly would set them apart from other bloggers.

This is needed to help consumers understand which news reporters to take seriously, Patterson argues. “We have to be able to get good information,” he told one interviewer. “We have to be able to rely on the source and to understand the credentials of the source.”

Although Patterson’s bill has received a lot of attention around the world, it is given little chance of passing. Other governments – including China’s – have considered measures that would forbid bloggers from posting anonymously. A French Senator, Jean-Louis Masson, has submitted a draft law that would require bloggers to provide their names, addresses and phone numbers on their blogs.

None of these initiatives likely will go very far, says Miguel Castro of the Open Society Media Institute. Chinese officials ultimately backed down, saying they would only encourage bloggers to use their real names, not require the disclosure. Many countries contemplating stricter measures have to consider that they may be taking on a growing global consensus. “International standards of freedom of expression are very strong,” says Castro.

Nonetheless, as the once familiar field of professional journalism now fractionates into countless online information providers, governments and courts even in societies that protect a free press, like the United States, are finding themselves attempting to define journalism and journalists. In so doing, they approve some purported journalists and reject others – just as licensors do.

Some of these cases involve the so-called “shield laws” that various states have adopted. These laws are designed to protect journalists from revealing confidential sources, thereby strengthening freedom of the press. But again, in this era, who is a journalist deserving of protection?

Some states have answered that question in terms of professional credentials: a journalist is someone who earns a living by reporting news for a news provider. That leaves out increasing numbers of journalists who publish online without support from an established news organization. It also creates the problem of defining “news providers.” In Alabama, a court held that a magazine reporter was not protected by the state shield law because that law covered those “engaged in, connected with, or employed on any newspaper, radio broadcasting station or television station, while engaging in news-gathering capacity.” In other words, the legislators had neglected to include magazine reporters (and wire-service reporters).

The proliferation of lone-wolf journalists also causes problems for government officials responsible for issuing press credentials. A decades-old Oregon law, for example, allows journalists to attend private, executive sessions of public bodies as long as the journalists agree not to write directly about the proceedings. But now that there are so many journalists, who qualifies to attend? In 2009 Oregon cities came up with a model policy that would give access to journalists from “currently recognized” media outlets – that is, those who have been going to the meetings for years – as well as others who belong to established news organizations or who can convince the public organization that they work for a “news source” that regularly covers the public body or its issues.

In an attempt to come to terms with the new media more precisely, some governmental entities are moving away from such professional definitions toward a more functional definition of journalists. A federal court in the District of Columbia, for example, stated that the term “news media” was “in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience.” Since that 2003 ruling, the DC federal courts, which are primarily charged with defining the bounds of the national Freedom of Information Act, appear to have adopted this functional approach to define journalists.

For as long as press credentials have been issued by government and political organizations, the government has been involved in favoring some journalists and turning away others. As the journalistic landscape changes, the government will get more involved than ever in defining who qualifies to be called a journalist. The test for journalism development organizations is whether the approval process is fair, transparent and objective – based on the need to regulate coverage in a confined setting rather than to favor certain journalists over others.

The Post-Communist Media World

During the Cold War, the mass media were considered key propaganda and ideological tools in the European and Asian socialist systems. In order to get a job, a socialist journalist needed the approval of the ruling Communist Party – and any journalist who did not stick to the party line was gone in a flash. “The question of employing journalists was of high importance for the Communist Party,” says Urmas Loit, director of the Estonian Press Council, a professional organization. A journalist did not have to join the party per se, Loit says, but such a move often was “necessary for career-making.” Similarly, nobody had to join the journalists’ union, he adds. “It was rather a question of prestige, and enabled some benefits.” In the shadow world of that era, figurehead governments did not explicitly license journalists, but the ruling parties chose journalists and controlled every aspect of their careers.

Since the fall of the Soviet Union in 1991, that kind of rigidity has broken down across the former communist world. In China, the largest remaining nominally socialist state, the rules on licensing depend very much on whether a media outlet is considered a central government or national level, provincial, or local organization. Journalists at national organizations, including People’s Daily and China Central Television, have press credentials and are at least expected to join the All-China Journalists Association. Today, however, even these key national organs sometimes use the work of journalists who aren’t officially on staff and therefore may not be as stringently controlled.

At provincial and local levels, regulations and enforcement become murkier. Different regions are developing different media “personalities,” so that the media overseers in the southern manufacturing center of Guangdong province, for example, are widely perceived as being less heavy-handed. When it comes to online media and blogs, the picture is murkier still. Technical levers of control – such as requiring credentials – become less important, and the role of a journalist’s supervisors more important; editors and webmasters are responsible for making sure content adheres to government expectations.

For foreign media, the rules are tougher. All correspondents working for foreign media who live and report in China are expected to have a “J” press visa and a press card issued by the Foreign Ministry; those who are caught working without these documents may find they’re no longer able to enter China on other types of work visas or tourist visas. Foreign journalists may report in China on short-term press visas as well, but these can be time-consuming to procure and short-lived in duration. Foreign correspondents who are legal residents have to renew their J visas yearly, and have been increasingly threatened with non-renewal if government authorities are unhappy with their behavior or coverage.

The mother of all socialist systems, Russia, has dropped licensing requirements entirely since the fall of the Soviet Union. Journalism is open to all entrants, regardless of education and experience. Publishers and broadcasters face  easy hurdles. A publisher must register a new newspaper with the Federal Service for the Oversight of Communications, Information Technology, and Mass Communications, for example, but the process is easy and the fee is only about $70 for a national paper, $35 for a regional or local paper.

All the same, the Russian system remains something of a shadow world, an environment that heavily favors state institutions. The tax system and various benefits give strong preferences to Russian state media. In addition, libel is prosecuted as a criminal offense, threatening serious consequences for any editor who takes on a government official. Generally speaking, constitutional protections of free speech work selectively. Russia can be a dangerous place for independent journalists. Eight were killed in 2009 alone, according to the Glasnost Defense Foundation, and dozens assaulted. And in Russia, says the International Research and Exchanges Board (IREX), which compiles a media sustainability index, the cases of murdered journalists often are not prosecuted vigorously (due mainly to the general ineffectiveness of the justice system).

In the former spheres of Soviet influence, the record is mixed. In Central Asia, governments generally have preserved elements of party-like control. “The legacy of the Soviet media environment remains problematic for today’s journalists in the region,” says a report on the region by Article 19, the free-expression champion. “The remnants and consequences of the old structures that formerly served to hinder or restrict independent journalism are still observed in some areas of Central Asia.”

Kazakhstan, for one, has ratified international covenants on human rights, and the government has played up its support for human rights in its present role as chair of the Organization for Security and Cooperation in Europe. On the surface, this record is “very good. They want to be seen as good guys,” says Peter Noorlander, legal director of the Media Legal Defence Initiative, which helps media defend their rights in legal cases. “But if you scratch the surface you see the most horrendous repression of journalists. The international community looks at the top level of reform and does not bother to scratch the surface and look underneath.”

In Uzbekistan, Noorlander helped bring a case involving the arbitrary closing of a newspaper to the U.N. Human Rights Committee. In a 2009 expression of views, the committee criticized the government for refusing to renew the registration of Oina, the minority Tajik-language newspaper. Uzbekistan’s government claimed that the publication had incited inter-ethnic hostility. But the committee said the government’s action had violated the newspaper’s and its readers’ freedom of expression. “The use of a minority language press as means of airing issues of significance and importance to the Tajik minority community in Uzbekistan, by both editors and readers, is an essential element of the Tajik minority’s culture,” the U.N. committee stated.

In Eastern Europe, where governments have worked hard to develop ties with the West, a much more western-style press has developed in the last 20 years. Poland prohibits censorship and press licensing. Its media have formed their own self-regulating Council of Media Ethics. In Hungary, a law guarantees freedom of the press, and the government provides no supervision. In the Czech Republic, only a minority of journalists belong to Union of Czech Journalists. The Ethical Commission of the Union of Journalists acts as an independent professional body and handles complaints from the public.

The Cold War era is history for much of Eastern Europe – but for other areas of the former Soviet Empire, maybe not quite.