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Introduction
In
May 1998 the Algerian government began to liberalise its
media policy. As part of this process it published a draft
Organic Law on Information - Loi organique relative à
l’information (LOI). ARTICLE
19, the International Centre
Against Censorship, analysed the draft and suggested some
improvements. The comments made by ARTICLE 19 are reproduced
below because they address problems which arise in many
countries when attempts are made to reform media
legislation.
THE DRAFT Organic Law on Information
(LOI) was
presented by the Algerian authorities as a proof of its intention
to continue reforming its information policy which started with
the dismantling of press censorship committees at the printing
houses and the abolition of the 1994 Decree on security related
news which barred journalists from reporting security matters
without prior authorisation. The government also started to open
up timidly the state broadcasting to legal opposition political
opinions and debate. The security situation of journalists has
relatively improved. There have been only a few attacks recorded
by armed Islamic groups since 1997. Journalists working in the
private press have enjoyed relative freedom of expression and were
able to criticise government officials and policies without fear
of reprisal. On the other hand, the print media is still subjected
to structural state domination in three areas: all the press
printing houses are state owned; the state monopolises the import
and distribution of the newsprint, and the discrimination in the
distribution of state companies advertisement which constitute
more than 80% of the published advertising.
Regarding the draft
LOI, ARTICLE 19 is concerned that it contains restrictions on
freedom of expression and if adopted by the Parliament would
constitute a clear government interference both directly in media
regulation and indirectly in the work of the Conseil supérieur
de la communication.
ARTICLE 19 urges the
Algerian government to reconsider this draft of the proposed law
and to incorporate the recommendations below.
Throughout this
analysis, ARTICLE 19 has evaluated the proposed legislation in
comparison with international standards for protection of freedom
of expression and information in general, and media freedom in
particular. Algeria ratified the International Covenant on
Civil and Political Rights (ICCPR) in 1989 and its (first) Optional
Protocol in 1990.
Only the most
serious concerns are addressed in this memo; a number of other,
less serious problems have not been noted. Should further analysis
or more detailed evaluations of international standards be
required, ARTICLE 19 would be available to provide these.
Summary
The Draft Organic
Law on Information purports to regulate most areas of media
activity. The law establishes a Conseil supérieur de la
communication (CSC), with responsibility for implementing many
of its provisions and with overall responsibility for the media. A
registration regime is established for the written press, along
with a number of restrictions on ownership, senior management and
advertising. Public broadcasters are to be created and governed by
Presidential decree while a number of more specific obligations
will be contained in their charters. Private broadcasters are
allowed but subject to a strict licensing regime overseen by the
Council. The law permits private press agencies but only upon
authorisation by the responsible minister. The law also regulates
the work of individual journalists, establishing a number of
professional rules and other restrictions. Finally, separate
sections set out the rules on the rights of reply and correction
and defamation law.
The comments below
focus on a number of key concerns ARTICLE 19 has regarding the
draft law. One problem is the lack of independence of oversight
bodies. Indeed, the press registration regime is administered by
the prosecutor, the appointments process for the CSC is
effectively under the control of the governing party and
independent press agencies need to gain the approval of the
responsible minister. In addition, the draft law puts in place
draconian restrictions on all forms of participation by foreigners
in the Algerian media. This is exacerbated by a number of
conditions on journalists and other media workers which
effectively restrict access to these professions. Access to
information and protection of sources, while protected, are
subject to wide-ranging exceptions. Finally, the law provides for
a number of broad and vague restrictions on the content of what
may be published.
Comments
1. Algeria’s
Obligation to Promote and Protect Media Freedom
Algeria has ratified
the ICCPR, Article 19 of which guarantees the right to freedom of
expression in the following terms:
1. Everyone shall
have the right to hold opinions without interference.
2. Everyone shall
have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his
choice.
3. The exercise of
the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as
are provided by law and are necessary:
(a) For respect of
the rights or reputations of others;
(b) For the
protection of national security or of public order (ordre public),
or of public health or morals.
Further, the ICCPR,
in Article 2, places a dual obligation on states to:
[A]dopt such
legislative or other measures as may be necessary to give effect
to the rights recognized in the present Covenant.
and to:
[E]nsure that any
person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, ...
International law
does permit some restrictions on the right to freedom of
expression and information in order to protect the private and
public interests listed in paragraph 3 of Article 19 of the ICCPR.
However, both the language of the provisions guaranteeing freedom
of expression and the international jurisprudence make it clear
that any restrictions must meet a strict three-part test. This
test, which has been confirmed by the Human Rights Committee,
requires that any restriction must: a) be provided for by law; b)
be required for the purpose of safeguarding one of the legitimate
interests noted in Article 19(3); and c) be necessary to achieve
this goal. It is clear that the proper approach to evaluating a
particular restriction is not to balance the various interests
involved but to ascertain whether the restriction meets the strict
test elaborated above.
The first part of
the test means that state action restricting freedom of expression
that is not specifically provided for by law is not acceptable.
Restrictions must be accessible and foreseeable and
"formulated with sufficient precision to enable the citizen
to regulate his conduct". As a result, official measures
which interfere with media freedom but are not specifically
sanctioned by law, such as discretionary acts committed by the
police or security forces, offend freedom of expression
guarantees. Second, only measures which seek to promote legitimate
interests are acceptable. The list of legitimate interests
contained in Article 19(3) is exclusive. Measures restricting
freedom of expression which have been motivated by other
interests, even if these measures are specifically provided for by
law, are illegitimate.
Third, even measures
which seek to achieve one of the legitimate goals listed must meet
the requisite standard established by the term
"necessity". Although absolute necessity is not
required, a "pressing social need" must be demonstrated,
the restriction must be proportionate to the legitimate aim
pursued, and the reasons given to justify the restriction must be
relevant and sufficient. The government, in protecting legitimate
interests, must restrict freedom of expression as little as
possible. Thus vague or broadly defined restrictions, even if they
satisfy the "prescribed by law" criterion, will
generally be unacceptable because they go beyond what is strictly
required to achieve the legitimate aim.
2. Registration of
the Press
Article 8 of the LOI
provides that periodical publications must register with the
prosecutor. The proposed law does not specifically note whether
existing press outlets are also required to register. If so,
interim measures should be provided for since registration is
supposed to take place 30 days before operations begin. Article 9
provides a list of the information required to be submitted for
registration. Among other things, Article 9 requires the
periodical to submit the criminal record of the director. Finally,
pursuant to Article 19, press outlets are required to deposit one
copy of each publication with the prosecutor and three with the
CSC.
Technical
registration requirements for the press do not per se
offend guarantees of freedom of expression as long as they meet a
number of conditions, noted below. However, ARTICLE 19 considers
registration to be unnecessary and it is not, in fact, required in
many countries. The Human Rights Committee, which oversees the
ICCPR, has noted, "effective measures are necessary to
prevent such control of the media as would interfere with the
right of everyone to freedom of expression." In particular,
registration regimes should respect the following conditions: the
authorities should have no discretion to refuse registration once
the requisite information has been provided; registration should
not impose substantive conditions on the press; and the
registration system should be administered by bodies which are
independent of government. Registration requirements which do not
respect these conditions offend freedom of expression principles
because they cannot be justified on the grounds listed in the
ICCPR, such as the rights or reputations of others, national
security, or public order, health or morals.
It is clear from the
above that it would be far better for an independent body with
authority for other aspects of the media, such as the CSC, to
oversee the registration process rather than the prosecutor. In
addition, the law should make it clear that registration is simply
a technical process and that registration may not be refused
unless the information supplied is incomplete.
The requirement to
submit the criminal record of the Director is unnecessary since
this information both should normally be available to the
authorities and is in any case irrelevant to the registration
process. Article 10 additionally requires that directors have not
had an "anti-national attitude". These requirements
cannot be justified and are clearly sufficiently wide to be
susceptible of political manipulation. A case before the
Inter-American Court of Human Rights clearly held that
restrictions on who may practise journalism are not acceptable as
the right to freedom of expression includes the right to free
access to the profession of journalism; the same reasoning is
applicable to the question of directors.
There can be little
legitimate reason for the deposit requirements, unlike deposit
requirements relating to national libraries and archives. The fact
that deposit must be with the prosecutor and regulatory body is
disturbing as this requirement may be abused as a vehicle for
censorship. This is far from hypothetical given the history of
prior censorship in Algeria.
Recommendations
-
ideally,
registration requirements should be removed from the
legislation; otherwise, the CSC should oversee the
registration process;
-
substantive
conditions on the character of the director should be removed
from the registration process;
-
any requirement
on the press to deposit copies of publications should apply
only to national archives and libraries.
3. Restrictions on
Private Broadcasters
Article 26 excludes
private broadcasters from "activities inherent in national
television coverage". There are a number of problems with
this. It is very vague and might breach the requirement that
restrictions on freedom of expression must be "provided for
by law" which implies a certain degree of clarity. In any
case, blanket exclusions on private broadcasters of this sort
represent a serious infringement of freedom of expression and are
clearly unacceptable even if clear. Article 30 provides that a
license agreement to be signed between the CSC and the private
broadcaster should include detailed information about such matters
as the time and money to be devoted to promotion of the national
culture and educational programme. Such agreements should not
include other than very general information about the nature of
overall programming – private broadcasters should retain
complete editorial independence as regards specific programmes and
scheduling matters.
Recommendations
-
The legislation
should impose no general restrictions on the ambit of
activities of private broadcasters;
-
License
agreements should provide only for very general guidelines
relating to overall programming.
4. Private Press
Agencies
Article 47 of the
FOI permits private press agencies only with the agreement of the
Minister of Information. It is now clear that under international
law, governments may not maintain public monopolies over services
which provide information to the public. In any case, authority
over matters like this should not rest with a government minister
since the risk of political interference represents a threat to
freedom of expression. Instead, any such authority should rest
with an independent administrative authority like the CSC.
Recommendation
5. The Right of
Reply
Article 48 of the
FOI gives a special right of reply to those invested with public
authority. The director is bound to carry, in the next issue, any
corrections addressed to him by such individuals. Article 49
provides for a right of reply for ordinary citizens where
imputations capable of harming their honour have been published.
Article 58 provides for the same right in respect of the broadcast
media. It is quite clear that public figures must tolerate a
greater degree of criticism than ordinary citizens, rather than
benefit from special protection as is the case here. In any case,
the standard established even by Article 49 is too low. A reply
should only be available where a publication has breached one’s
civil rights, as provided for in laws of general application. The
law should, in addition, provide for a procedure for claiming a
right of reply which ensures that media outlets may appeal
decisions to independent courts.
Recommendations
-
Article 48
should be removed from the legislation;
-
Articles 49 and
58 should be amended to make it clear that a right of reply is
only available where the material in question represents a
breach of a law of general application.
6. Conditions on
Professional Journalists
Article 65 of the
LOI provides that professional journalists are those whose regular
profession is journalism and who derive most of their income from
this activity. Article 66 provides that at least one-third (or
some proportion, the draft law is unclear here) of the staff of
general media outlets must be professional journalists. It has
already been noted that international law does not permit
conditions to be placed on the practice of journalism. Indirect
controls, such as these, are equally unacceptable.
Recommendation
7. Access to
Information
Article 71 provides
for access by professional journalists to certain government
information. There are two problems with this provision. First,
there is no reason to restrict access to information to
professional journalists; other journalists and indeed the public
at large should be able to access information held by government,
as is increasingly being recognised. Second, access is only
provided to information not otherwise classified or protected by
the law. Although some restrictions on access are legitimate,
these should be narrowly construed and subject to review by an
independent authority. In general, access to government-held
information should be facilitated by an independent administrative
authority, with which the public may lodge complaints in case of a
refusal to disclose.
Recommendation
i) The
government should only be permitted to classify specific and
narrow categories of information which need to be withheld for
the protection of legitimate, overriding interests including
those relating to national security. Broad and ambiguous
expressions should be avoided.
ii) Not all
information "relating to national security" may be
withheld from the public. Classification should be restricted
to information whose disclosure poses a genuine risk of
endangering national security.
iii) An
administrative structure should be established for receiving
and deciding upon requests for access to information. This
body should be independent of government and have the power to
order any government body to release information; all
procedures should be accessible, simple and quick. The
"public interest" in the information should be a
primary consideration in all decisions on requests for
information.
iv) The
authorities should be required to specify in writing, within
fixed time limits, their reasons for denying any request for
information.
v) Judicial
review should be available for all decisions regarding access
to information.
8. Restrictions
on Publication
Article 72 forbids
journalists from publishing material on a wide range of subjects
including rights and liberties, national security and national
unity. Blanket restrictions of this sort can never be justified,
particularly where the topics listed are capable of such broad
interpretation. Indeed, ARTICLE 19 has serious reservations as to
whether denying the right to publish on any topic – a severe and
general prior restraint on freedom of expression – may ever be
justified.
Recommendation
9. Protection of
Journalists’ Sources
Protection of
journalists’ sources, subject only to very limited exceptions,
is clearly provided for by international law. Such protection is
provided for in Article 74 of the draft LOI but is subject to a
number of exceptions. Some of these, for example that journalists
may be required to disclose their sources whenever issues of
economic secrecy or information concerning minors is involved, go
beyond what is permitted under international law which provides
that the right of non-disclosure may only be removed where
"justified by an overriding requirement in the public
interest."
Recommendation
10. Independence of
the CSC
Article 89 provides
that the CSC is to be independent and lists a number of very
positive goals of the CSC. The manner of appointment of members of
the CSC, however, does not sufficiently guarantee this
independence. The nine members are to be appointed in equal
proportion by the Presidents, respectively, of the Republic,
Assemblée Populaire Nationale (National Assembly) and the Conseil
de la Nation (Senate). Although this is the model adopted
by France, Algeria lacks the institutional, social and historical
guarantees of freedom of expression that contribute to the
functioning of this system in France despite its structural
shortcomings. In particular, it suffers the grave shortcoming of
precluding the participation of opposition and minority parties
and interested members of the public and gives the ruling party
too much control. A number of better models are available. At a
minimum, the law should provide for a number of conditions on CSC
members, for example that they should be representative of the
society as a whole and selected for their professional expertise
rather than for political reasons.
Recommendation
-
The process for
appointments to the CSC should be open and transparent and
ensure the independence of that body. Adequate provision
should be made for input from groups broadly representative of
society as a whole, to ensure that the CSC is truly
independent and representative.
-
Conditions on
CSC membership should also be explicitly provided for, in
particular to prevent conflicts of interest and to preclude
the appointment of individuals too closely associated with
political parties or groupings.
-
Security of
tenure of CSC members should be protected to help ensure their
independence while undertaking regulatory activities.
11. Restrictions on
Foreigners
Perhaps the most
restrictive provisions of the LOI relate to foreigners. Any
participation by non-Algerians in media enterprises on their
territory, and indeed any participation by Algerians in foreign
media enterprises, is subjected to strict control by either the
relevant minister or the CSC. Article 10 provides that only
Algerians can be directors of press outlets. Article 13 prevents
foreigners from participating in the financing of the press,
unless authorised by the CSC and also allows foreigners to
establish press outlets only with ministerial authorisation. No
conditions on the exercise of these discretionary powers are
established. Importing, publishing, printing and distributing
foreign publications is allowed only with ministerial
authorisation, pursuant to Article 18. Similarly, Article 34
provides that only local broadcasters may be licensed while
Article 35 provides that the capital of such broadcasters must be
held exclusively by Algerians, unless foreign involvement has been
authorised by the CSC. Finally, professional Algerian journalists
working for foreign media enterprises need ministerial
accreditation, which may be withdrawn by the same minister.
The international
right to freedom of expression applies "regardless of
frontiers". These restrictions represent an almost absolute
prohibition on any foreign participation in the Algerian media and
cannot be justified. In addition, the fact that any participation
is subject to either ministerial or CSC discretion, rather than
laws which set out in advance rules to be applied, suggests an
illegitimate motive.
Recommendations
-
All restrictions
on foreign participation in the Algerian media should be
removed.
-
If any such
restrictions are retained, they should be set out clearly in
the law and applied in an objective and non-discriminatory
manner, rather than being under the control of essentially
political organs.
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