“Law is an ass” says Charles Dickens. This certainly seems to hold true in the light of the freedom that is enjoyed by media through the protections granted by both domestic legal systems and international law. While I am reaping the benefits of freedom of expression in making these claims, it needs to be highlighted that certain freedoms require to be curtailed and/or reviewed in order for the other rights to exist. At present, it is possible to note that some journalists exercise their freedom of expression in a manner harmful to the society. It is questionable whether such practices should be upheld in light of several recent circumstances. While freedom of expression is, without a doubt, one of the most important rights that perhaps functions as a premise for other rights, it is important to establish the framework within which one may swing one’s fist without striking another’s nose.
Two incidents come to my mind when I speak of the wild ass freedom enjoyed by various media. Firstly, there is Charlie Hebdo of France. Secondly there is Seya Sadewmi of Sri Lanka. These two incidents highlight instances where freedom of expression has come into conflict with the other rights that are mentioned in both domestic Bills of Rights and International Conventions on Human Rights. Therefore, it is essential that these incidents and their respective consequences are analysed separately to do them justice.
The first incident calls for an analysis of freedom of speech, religion and world’s differential treatment towards different groups of people. A ground reality that one must address in respect of hate speech is that some groups of the society are better protected from so-called free speech which cross one too many lines than some others. For instance anti-Semitism is condemned while Islamophobic statements or anti-Islam statements tend to be swept under the rug.
When attempting to strike a balance between freedom of expression and prohibition of hate speech, the courts are invariably given the heavy task of soothing the seeming situation of the tug of war between free expression and human dignity and sensitivities that could be affected by such free expressions. In paragraph 31 of Jerslid v Denmark, the court while reaffirming the duties and responsibilities of a journalist also states that press should have the freedom to play its vital role of ‘public watchdog’. While principles of journalism and the service they provide to the world should be regarded highly, it ought to be noted here that the court has to identify the thin line between being a public watchdog which provides services and deteriorating to animalistic instincts of superiority and hatred through a façade of freedom of expression.
Paragraph 6, of General Comment No 35 of the Committee on the Elimination of Racial Discrimination, states that ‘criticism of religious leaders or commentary on religious doctrine or tenets of faith should not be prohibited or punished’. It needs no mentioning that the ‘criticism’ mentioned herein is not to be misconstrued as a right of lampooning the religious faith of another. While I in no way endorse the terrorist attack on Charlie Hebdo personnel, I cannot help but think that it could have very well been avoided had they exercised an iota of self-discipline in their cartoon portrayals of religious figures. Although Charlie Hebdo’s freedom of expression has widely been supported as is evident from the ‘Je suis Charlie’ movement, it is questionable whether such supporters would adopt similar views had the magazine portrayed their loved ones, for instance a parent, in a sexually explicit position as was the case with regard to the religious leaders. One may attempt to counter the above argument by stating that a parent or a relative is in a different status than a religious figure. Nonetheless, there does not seem to be any difference between those two incidents as the magazine would have insultingly portrayed a figure that is loved by a person or a group of persons. The laws regarding defamation are in existence in order to protect one’s right not to be insulted without cause from another person’s freedom of expression. In that light, it is surprising that the world seems to be of the belief that one’s freedom of expression is somehow ranked high in the hierarchy of rights. In certain circumstances, it seems to be ranked so high even above the freedom of thought and conscience.
The Human Rights Committee (HRC) has adopted the view that ‘displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant’ except for the grounds mentioned in Art. 20 (2) of ICCPR. I am of the personal opinion that this stance is rather overarching and ought not to have been adopted by the HRC. While a mere display of lack of respect of religion ought not to be considered as an offense under law, blasphemy ought to be differently treated. Black’s Law Dictionary defines blasphemy as the offense of speaking in a manner ‘intending to wound the feelings of mankind or to excite contempt and hatred’. This interpretation seems to come within the prohibited actions stipulated in Art 20 (2) of ICCPR.
In the matter of Wingrove v UK the ECHR decided that a complete ban of the airing of a music video displaying St.Teressa of Avila in a sexualized form was considered necessary and reasonable in the circumstances. This calls into question what the ‘test of necessity’ ought to be. Furthermore, in paragraph 60 of the judgment, the court stated that ‘it is the manner in which views are advocated rather than the views themselves which the law seeks to control’. Judging by this approach, if portrayals of Prophet Muhammed in Charlie Hebdo are questioned in ECHR, they ought to adopt the same view although to expect it to be so in light of the ‘Je suis Charlie’ movement seems like a distant dream. The dissenting opinion of the judgment which states in paragraph 4 that ‘the aim of the interference was to protect Christian faith alone and not other beliefs’ rings true when the European approach to freedom of expression and religion is put in context.
In the Seya Sadewmi incident of Sri Lanka, the media rushed to scene of the crime, perhaps also destroying valuable pieces of evidences that could have been gained from the crime scene as mentioned in my previous piece on the incident. In addition, the media was quick to cast suspicion on the murdered girl’s family members thus resulting in the prevention of their participation at her funeral. The media was also quick to spread stories regarding the 17 year old individual arrested on suspicion in connection with the said murder. In this situation, the media has engaged in a virtual rape of the murdered girl while also violating the presumption of innocence of those arrested. Moreover, the public outcry regarding the matter was encouraged and fuelled by the media which has now raised the question of the possibility of enforcing the death penalty.
Article 13 (5) of the Sri Lankan Constitution guarantees the presumption of innocence to those suspected of committing crimes. Nonetheless, a larger portion of Sri Lankan media behaved in a manner unbecoming of ethics of journalism. Publication of the murdered girls images that are detrimental to the respect that ought to be paid to a dead person were circulating on the internet. Some of these websites stooped so low as to title their pages as ‘Hot Pics of Seya Sadewmi’. It is understandable that these lead to further crimes or encouragement thereof. It is also evident from a fact that I noticed when I checked analytics of my previous piece published on WordPress. It indicated that an individual has used the search term ‘Seya Sadewmi Sex Pics’! (See the screen shot pertaining to the said search terms). Is this not an indication of the existence of more and more pedophiles? I am at a loss for words regarding this and I fully blame the media for their uncouthness in attempting to gain more views by using the images of the dead girl. It almost appears as the girl has been gang raped by undisciplined media units of Sri Lanka which do not seem to comprehend the necessity of self-imposed restrictions when reporting matters of this nature. Moreover, this proves the fact that media has been helping the sick pedophiles to gain satisfaction by viewing the images of the child that are freely available on the internet.
When the much talked of gang rape against a medical student took place in India, the Indian media only referred to her as Nirbhaya. The media abstained from posting her pictures except an image of her in a saree and one image of receiving treatment at the hospital. Her name ‘Jyoti Singh’ was only revealed when her father decided to state it to the media for purposes of giving strength to other victims who have suffered at the hands of rapists. Nonetheless, it is important to remember that with regard to this incident, the Indian media behaved in a respectable manner.
It is my humble opinion that freedom of expression ought not to be considered as an absolute right that is not subject to any limitations. There are certain Codes of Ethics that journalists ought to follow when making their journalistic contributions to the world. While I do not propose that domestic systems should introduce censorship rules, it is suggested that journalists exercise some restraint especially when reporting matters that can have an impact on other people’s rights and a possible court case. For instance, if a jury is to be called in Sri Lanka regarding the child’s rape incident, it is impossible to believe that it would be possible to find a juror who has not been exposed to all discriminatory remarks made by the media regarding the suspects in temporary confinement.
Without self-restraint and journalistic ethics, freedom of expression becomes the freedom of the wild ass.