At a time when the Fourth Estate of the world's most powerful democracy—the US—is beginning to worry about the fate of its freedom of expression under the new Trump administration, some of the lesser known heroes of democracy—in Latin America, the Caribbean and Africa—are making significant strides in guaranteeing a free and an unhindered press. They are making strides towards upholding the freedom of expression and information, as well as promoting media pluralism, independence and protection of journalists, and laws decriminalising defamation.
Ranked sixth in the world Press Freedom Index 2017 by Reporters Without Borders (RSF), Costa Rica commands the best record among these countries of respecting human rights and free expression. Jamaica, which became a parliamentary democracy in 1962, famously passed a law decriminalising defamation in 2013 earning it the eighth position in RSF's list. Uruguay, one of RSF's top 30 countries, is fast emerging as the "model for freedom of information" in South America. And in Africa, Ghana—much above France or the UK—is setting a formidable example with its constitution of 1992 guaranteeing media pluralism and independence.
What drives these countries to relentlessly pursue freedom of expression and be ranked way above the poster countries of democracy, like the US or India?
All these countries belong to volatile regions where hostile political conditions do not make it easy for the press to operate. What, then, drives these countries to relentlessly pursue freedom of expression and be ranked way above the poster countries of democracy, like the US or India (at 136)?
Why is it so easy in India to brazenly murder a prominent journalist like Gauri Lankesh with the culprits still untracked days after the killing?
Referencing a 2015 report by the Press Council of India (PCI), the 2016-17 Press Freedom in South Asia report says, "Out of the 80 cases of journalist murders since 1990, justice has been delivered in only one case—that of the gang rape of a female journalist in Mumbai in 2013 as it was tried under the newly amended anti-rape laws in a fast-track court."
Is it not an irony that India—one of the few nations where the media industry is demonstrating an upward trajectory—should earn disrepute from watchdogs like the Committee to Protect Journalists (CPJ) for the physical violence and intimidation of journalists?
Meanwhile in Costa Rica, press freedom seems to be almost nonnegotiable. Two cases illustrate this.
The first one involves a request by a journalist to the Costa Rican Ministry of Justice and Peace to make available the statistics of prison overcrowding. It was declined on the pretext of national security. When the matter reached legal realms, the Costa Rican court ruled that the request should be heeded as prison overcrowding is an issue that merits public disclosure.
The second is about repealing the controversial Information Crimes Law following a huge public uproar. The law provisioned up to 10 years of imprisonment for publishing "secret political information."
India still holds defamation as a criminal offence when countries like Jamaica have already revoked it.
In comparison, "journalists still remain for most part devoid of the protections they have sought in order to fulfil their public mandate," says the Press Freedom in South Asia 2016-17 report. It points out that in "insurgency-wracked" regions such as Chhattisgarh, Jammu and Kashmir, Assam and Manipur, the press is further subjected to intimidation and censorship not only by the government but also from militant groups "seeking to slant coverage in a certain way."
India still holds defamation as a criminal offence when countries like the US and UK and even Jamaica have already revoked it. Jamaica, in fact, became the first country, in the Caribbean, to get rid of criminal defamation.
For long the media in this erstwhile British colony had to struggle through the exorbitant costs of contesting lawsuits, vengeful judgements, and even occasions when stories were repressed to allay the possibility of being sued.
In 1987, the country's Jamaica Gleaner newspaper was sued by its then tourism minister for publishing a story that alleged the minister might have accepted a bribe.
After a protracted struggle of seven years by international organisations like the International Press Institute and local media associations, the Bill decriminalising defamation was passed.
As per this report the Bill not only decriminalised defamation, but also introduced a "wire service defence" that allows media organisations to use reports from reputable sources without having to verify accuracy. In addition, Jamaican judges, not juries, now determine damages for media organisations found guilty of publishing defamatory information. Experts say this will lead to more reasonable fines that will not threaten the existence of media houses. Meanwhile in India, political and business heavyweights with deep pockets often use the criminal defamation law as a tool to hound journalists who mostly do not have enough financial resources to fund the usually protracted and expensive lawsuits.
The confidence arising out of being protected leads to unhindered reporting of events. We need a strong, independent body acting like a helpline responding to journalists in real time.
Of course some beginning has been made with Maharashtra passing the "Maharashtra Mediapersons and Media Institutions (Prevention of Violence and Damage or Loss to Property) Act, 2017 that makes attacks on journalists punishable with a prison term and fine, as well as compensation for damage inflicted.
The Press Council of India (PCI) is also demanding a special law that guarantees safety of scribes by making attacks and intimidation of journalists a cognisable offence, and speedy trial of cases in special fast track courts.
Many also advocate defamation be considered a civil offence. A Bill seeking to decriminalise defamation—the Right to Protection of Speech and Reputation Bill—was introduced in Lok Sabha seeking to make defamation a civil wrong.
Some espouse striking a balance between protecting journalists by reducing the possibilities of distortion of defamation law as well as taking enough measures to safeguard personal reputation.
The recommendation is while the claimant must make available substantial evidence proving damage to reputation caused by an alleged remark, journalists should be made accountable for the accuracy and authenticity of the facts of their reports.
The confidence arising out of being protected leads to unhindered reporting of events. We need a strong, independent body acting like a helpline responding to journalists in real time.
Exactly what Uruguay did by establishing a Broadcast Communications Council that is independent of the government.
Empowerment of the PCI and expansion of its role as a decision making body in press and reporting related cases will go a long way in protecting the journalists.
Fearless voicing of opinions is one of the primary elements of our democratic construct. We thrive on plurality of perspectives and debates. It's time we made the "right to differ" non-negotiable.
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