Freedom of Expression and the Press

The right to freedom of expression is one of those rights seen as very essential and fundamental to the development of a civilized society. It is the foundation for the enforcement of other rights, encroachment of which is made known by expression. A major determinant of a nation's respect for the rights of its people is the extent to which they can express themselves.

Freedom of the press or freedom of the media is the freedom of communication and expression through mediums including various electronic media and published materials.

While such freedom mostly implies the absence of interference from an overreaching state, its preservation may be sought through constitutional or other legal protections. With respect to governmental information, any government may distinguish which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest. Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest.

The United Nations' 1948 Universal Declaration of Human Rights states:

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers"

This philosophy is usually accompanied by legislation ensuring various degrees of freedom of scientific research (known as scientific freedom), publishing, press and printing the depth to which these laws are entrenched in a country's legal system can go as far down as its constitution. The concept of freedom of speech is often covered by the same laws as freedom of the press, thereby giving equal treatment to spoken and published expression.

As remarked by the President of the International Court on Human Rights:

"Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a condition sine qua non for the development of political parties, trade unions, scientific & cultural societies, and in general, those who wish to influence the public."

According to Prof. B.O Nwabueze, free speech and free press are instruments of self- government by the people to be informed and educated about the affairs of the government. Political responsibility as a concept of democratic government requires that public opinion shall be one of the factors informing the actions of the government. Free speech and free press enable; corruption, abuse of office and other official wrongdoings to be exposed.

It was the press that published stories of the systematic torture of Algerians by French soldiers during the Algerian war of independence. The press botched the presidential ambition of Garry Hart of America when his amorous past was put in the public glare. The Nigerian press was at the forefront of the opposition to the corrupt, inept, and dictatorial regime of General Ibrahim Badamosi Babangida and General Sanni Abacha. It was the alliance between the media and the National Assembly that botched the ambition of former President Olusegun Obasanjo to secure a 3rd term in office through manipulated constitutional amendment.

The declaration of Principles on Freedom of Expression in Africa reaffirmed the fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms. In IGP V. ANPP, the court of appeal described freedom of expression as the bone of democracy.

Section 39 of the constitution which guarantees the right to freedom of expression provides as follows:

1. Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impact ideas and information without interference.
2. Without prejudice to the generality of Subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions, provided that no person, other than the government of the federation or a state, or any other person or body authorized by the president on fulfillment of a condition laid down by an Act of National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever.

The African Charter in Article 10 guarantees the right to freedom of expression as follows:

1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinion within the law.

Under the constitution, the obligations of the press in the context of the fundamental objectives and directive principles of the state policy are stated in the following terms:

"The press, radio, television and other agencies of mass media shall at all times be free to uphold the responsibility and accountability of the government to the people."

The question whether the constitutional guarantee of freedom of expression shields media practitioners from being required to disclosed the sources of their information arose in a number of cases. The case of Attorney General V. Foster where the English court of Appeal ruled that the journalists are not entitled to immunity of non-disclosure represents the common law position.

On the contrary, the court held in Adikwu V. Federal House of Representatives that a newspaper cannot be required to disclose its sources of information except in grave or exceptional circumstances.

However, the court in Tony Momoh V. Senate, the Senate Committee of Inquiry summoned the then Editor of Daily Times, Tony Momoh, to disclose the source of his information which formed the basis of an article he published about the senators. The court held that such disclosure could violate his right to freedom of expression guaranteed under Section 39(1) of the 1999 constitution. On appeal, the Court of Appeal held that:

"The press or any other medium of information cannot claim any right to confidentiality of the source of their information in a proper investigation by a House of the National Assembly of the police."

Any restriction on the right to freedom of expression must be in accordance with law which is reasonably and such law must have the objective of achieving any of the purposes set out in either Section 39(3) or Section 45(1) of the 1999 constitution.

Under Section 39 (3), the right to freedom of expression could be restricted by a law reasonably justifiable in a democratic society, for the purpose of preventing the disclosure of information received in confidence, or for the purpose of maintaining the authority and independence of the courts. Under Section 45 (1), permissible limitations must be reasonably justifiable in a democratic society in the interest of defense, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons.

The concept of press freedom is not the sole property of journalists or proprietors, but can also be legitimately claimed by the society at large, and even the government to some extent. It is clear that press freedom connotes the following:

1. No prior or subsequent censorship. i.e the freedom to own
2. Freedom to gather & the right not to be compelled to disclose the source of information
3. Freedom to import
4. A passive right to receive
5. Freedom from unreasonable punishment for what is published.

According to Cahn:

"No other institution affects the shapes & nature of society so directly, no other civil liberty penetrates community life so pervasively and since freedom of the press is at the bottom of mutual covenant among all the people- no other covenant they undertake displays so precisely the people's estimate of their own intelligence, critical judgment, and moral worth. To consider the law of press freedom is to consider the social quality and torture hopes of democracy itself"

Freedom from initial and subsequent censorship

This connotes the freedom to own and establish a press. This freedom which belongs to the proprietor of the press, is the principal meaning and concern of the press since there is no real danger by merely publishing. Many civilised and modern constitutions prohibit initial censorship, which usually affects ownership. All these forms of censorship were unlike its predecessors, expressly or by implication, prohibited by the 1999 constitution.

Thus in Section 39(2):

"Without prejudice to the generality of Subsection (1) of this section, every person shall be entitled to own, establish and operate any medium for the dissemination of information, ideas and opinions."

There is a proviso to the section that:

"... that no person, other than the government of the federation or a state, or any other person or body authorized by the president on fulfillment of a condition laid down by an Act of National Assembly, shall own, establish or operate a television or wireless broadcasting station for any purpose whatsoever."

In the US, the ban of newspapers, magazines or other publications are permitted, but only in exceptional cases. For example, where it is prejudicial to the prosecution of a war which the country is involved or incites acts of violence and overthrow by force of orderly government.

The government has to prove that situation necessitating the ban was exceptional. There is no doubt that it is more desirable for the exercise of such power to be subject to litigation.

Freedom to gather information and the right to be compelled to disclosed its source

This freedom is enjoyed both by proprietors and journalists. As regards to gather information, it would appear that this is an important right incidental to that of freedom of the press in the light of the constitutional rights to receive ideas without interference. There is however, no constitutional rights actually guaranteeing unrestrained right to gather any type of information not normally available to the general public.

It cannot be denied that some measure of freedom to gather information is very necessary for the press to be able to perform its very necessary role of keeping the public informed about governmental activities and being a watchdog for the public.

For example, in the US, there exists the Freedom of Information Act or 1974 which gives some measure of right in this respect by imposing certain duties on the custodian of an information.

A more important point is whether under the Nigerian constitutions, the press has a right not to be compelled to disclose the source of an information. This point was contested in Oyegbemi & Ors V. AG Federation where the court held that:

"No person, be he an editor, reporter, or publisher of a newspaper can be compelled to disclose any source of his information for any matter published by the person and non- disclosure cannot be contempt of court. This is subject to interest of justice, national security, public safety, order, morality, welfare of persons or prevention of disorder or crime. Consequently, the right to withhold information like all other freedoms, not absolute."

Freedom to import

The Proprietors & journalists of a press have the right to import information gathered to members of the public. This freedom to "import ideas" is specifically mentioned in Section 39 of the constitution thus signifying its importance. Also, the freedom to gather and that of the public to receive, which will later be discussed, would be of no use without this crucial freedom.

Freedom to recieve information

There is also a corresponding right of the populace to receive or obtain information imparted by the press. This is based on the right of the people to be informed about the workings of their government & society generally.

The freedom of the press to impart information would be of no use without the corresponding right of the populace to receive. This right only starts when the information leaves the press and ends when it is received. It may be impeded by banning of writing, or jamming of radio or television programmes.

Schools

The right to hold opinions, receive and impart ideas information without interference has also been used to cover establishment and ownership of schools. In Adewole V. Jakande, the court held that the provisions of the 1979 constitution guaranteeing the right to freedom of expression extends to instructions given and received in schools, and is not limited to freedom of the press only.

The Court in Archbishop Okogie V. AG Lagos state, held that:

"While it is conceded that... the constitution permits the imposition of reasonable restrictions on the exercise of the rights to freedom of expression, it is difficult to conceive of a reasonable restriction that would be justifiable in a democratic society in refusing to allow private primary schools to operate."

The court has however recognized in many cases, duty of the government to regulate the standard of education.

Worthy of note is the fact that under other jurisdictions, this right has been used to cover other areas of public life such as correspondence of prisoners, right to view parliamentary proceedings, issues of commercial speech, etc.

Thus, in Tinker V. Des Moines Independent Community School District, high school principals banned the wearing of black armbands by students, used as a symbol against the United States' action in Vietnam. The court in reinstating the students suspending for violating the ban held that the students as well as the teachers do not shed their constitutional right to expression even while in school.

This right has been applied to the right of prisoners to receive mail and outsiders to send mail to the prisoner who can be only be censored in the interest of security, order & rehabilitation.

It has also been extended to the issue of right to view parliamentary proceedings. In NB Broadcasting V. Nova Scotia, a television company wanted to televise the proceedings of the House of Assembly of the Canadian province of Nova Scotia and the speaker refused the request. The court held that the ban on television prohibits a mode or means of expression. To limit a mode of expression is to limit freedom of expression.

Limits

Laudable as this right is, it is not and cannot be absolute. Though the public has a right to accurate information and fair comments, this must be balanced against other claims in the society which may often conflict except when overridden by public interest.

Blackstone is of the view that:

"To punish us as the law does any dangerous or offensive writings which when published, shall in a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only foundation of civil liberty."

As stated in all the international and regional instruments, limitation by law and imposition of duties in this respect is permitted. Thus, Section 39 (3) of the 1999 Constitution provides:

"Nothing in this section shall invalidate any law that is reasonably justifiable on a democratic society -

1. For the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephone, wireless broadcasting, television or the exhibition of cinematograph films, or
2. Imposing restrictions upon persons holding office under the government of the federation or of a state, members of the armed forces of the federation or members of the Nigerian Police force or other government security services or agencies established by law.

Thus, in the light of these constitutionally permitted grounds, the following restrictions have been imposed by law;

Information recieved in confidence

Various issues come under this head :

State Privilege:

This has been defined as "the right of the state through its agents or functionaries to withhold evidence which it considers injurious to public interest of revealed in open court.

Official Secrets:

Provisions relating to the disclosure of official secrets are provided for under the Criminal Code and The Official Secrets Act and as has been noted; this area is undoubtedly the most comprehensive... on restrictions on access to government held information.

Section 97 of the Criminal Code provides the mode of punishment for any person who being employed on the public service, publishes or communicates any fact which is meant to be secret.

Similarly, Section 1 (1) of the Official Secrets Act makes it an offence for anyone to transmit classified matters to anyone who is not authorized on behalf of the government to transmit it.

Contempt of Court

In the course of the administration of justice by the courts, there is no doubt about the need to ensure the absence of improper interference and obstructions, and the courts themselves play an important role in this respect.

One very crucial power exercised by the court here is in relation to the law of contempt of court, which is a limitation of the right to freedom of expression. The exercise of this power stems from the authority of judges to control what happens in or around their court and is part of the inherent powers and sanctions of the Court under Section 6 (6) (a) of the 1999 Constitution.

Perjury

The offence of perjury affects the right to freedom of expression & the press and is directed towards the maintenance of the authority and independence of the courts.

In R V. Onward, where a poorly paid clerk who had been charged with stealing some petrol drums of considerable value, denied ownership of a car which belonged to him, the court held that it amounted to perjury.

Apart from the above stated grounds, Section 45 (1) of the 1999 Constitution also generally makes provisions for further restrictions:

1. In the interest of defense, public safety, public order, public morality or public health.
2. For the purpose of protecting the rights and freedoms of other persons.

Obscene and harmful publications

The basis for restriction here is in the interest of public morality. In Nigeria, the applicable law is fashioned after the English Obscene Publications Act of 1959 which has been modified by the 1964 Obscene Publications Act and the Criminal Law Act of 1977.

Under Section 2 of the Children and Young Person (Harmful Publications) Act, it is an offence to publish any book or magazine which is a kind likely to fall into the hands of children or young persons which portrays the commission of crimes, the acts of violence or cruelty, or incidence of a repulsive or horrible nature.

An article or matter is only obscene if it's likely audience will be depraved or corrupted by it. The test of obscenity is whether the effect of the article in question upon that person is such as to deprave or corrupt him.

In R V. Clayton, on a charge of selling obscene photographs to 2 policemen, the court held that the charge against the accused person could not hold since the persons they sold the photographs to were not persons likely to be depraved or corrupted by it.

Sedition

This limitation is perhaps one of the most objectionable, perhaps because it infringes on freedom of expression in the political context. The offence of sedition is provided for in the Criminal & Penal Code.

In African Press Ltd. V. The Queen, the appellants were charged for printing a seditious publication. The court held that the purpose of the article was not only for the purposes of causing disaffection and discontent towards the colonial administrative officers by the people but was also capable of causing discontent & disaffection among the administrative officers.

In DPP V. Chike Obi where the appellant referred the Federal Supreme Court to the point whether or not the law of sedition contravened his right to freedom of expression guaranteed under Section 23 of the 1963 Constitution. The Supreme Court held that the law was "reasonably justifiable in a democratic society" and therefore was constitutional.

In Nwankwo V. State, Chief Nwankwo was charged, convicted and sentenced to 12 months imprisonment for publishing a pamphlet titled "How Jim Nwobodo rules Anambra State". The court went ahead to justify Chief Nwankwo's act, saying that he was entitled to a freedom of expression.

Defamation

Another way in which the right to freedom of expression is limited under the law relating to defamation of character. Ad was succinctly put by Lord Denning:

"To our way of thinking it is elementary that each man should be able to inquire and seek after the truth until he has found it. Everyone in kind should be free to think his own thought, have his own opinions, and to give voice to them, in public or in private, so long as he does not speak ill of his neighbor."

In Tony Momoh V. The Senate House of Assembly, the fact of such limitation on free speech was recognized. Section 45's general derogation clause also makes this limitation constitutional. For the purpose of protecting the rights & freedoms of other persons, which here is a person's right to a good reputation or a good name.

As stated by the court in Times Publishing Company V. Carlisle, good name is amongst a man's priceless possessions. A man's reputation is therefore absolutely indispensible in the pursuit of happiness.