Citizen media and the freedom of expression

Author: Adebayo Okeowo
Advocacy Coordinator, Centre for Human Rights, University of Pretoria

If you have ever found yourself whipping out your phone to film or photograph police officers brutally beating up peaceful protesters, and you subsequently share that video or picture on social media, you have just contributed to citizen media. You are also someone who can be referred to as a citizen journalist. This is just one of the several scenarios in which civilian witnesses are – knowingly or unknowingly – helping to document evidence of human rights violations.

Citizen media encapsulates videos, pictures or audio produced by non-professional journalists, especially using their mobile phone as a tool. Citizen media started gaining prominence when an increasing number of civilians became equipped with smartphones and had access to social media.

This development has revolutionised the chain of information gathering and dissemination in that the power is now in the hands of each civilian to share content independent of the traditional media. It has also redefined the field of human rights documentation and investigation and has become a tool feared by authoritarian regimes.

The act of citizen journalism is an exercise of the right to freedom of expression which is protected under article 19 of the International Covenant on Civil and Political Rights (ICCPR). Article 19(2) specifically states that:

“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”

The inclusion of the words ‘other media’ makes it possible to have citizen media covered by this treaty provision, even if it was never foreseen by the drafters of the ICCPR. In 2011, while enunciating the provisions of article 19, the Human Rights Committee made a remarkable statement:

“States parties should take account of the extent to which developments in information and communication technologies, such as internet and mobile based electronic information dissemination systems, have substantially changed communication practices around the world. There is now a global network for exchanging ideas and opinions that does not necessarily rely on the traditional mass media intermediaries. States parties should take all necessary steps to foster the independence of these new media and to ensure access of individuals thereto.”[1]

This general comment recognises both citizen media and social media and this is quite significant considering that both platforms did not exist back in 1966 when the ICCPR was adopted.

It is important to note that a key ingredient of article 19(2) will be the right to record. This should not be perceived as a new right but rather as an offshoot of the right to freedom of expression. It seems logical that one cannot be expected to have the right to disseminate or impart information if one cannot defend the right to document or record in the first place. The same way the right to life cannot be safeguarded without guaranteeing the right to quality, affordable and accessible healthcare is the same way the right to freedom of expression encapsulates the right to record. In their 2016 report to the UN Human Rights Council, special rapporteurs Maina Kiai and Christof Heyns affirmed that the right to record is derived from the right to seek and receive information which is protected under article 19(2) of the ICCPR. While there may be limitations on the right to record, as it is with most other rights, these limitations will usually exclude public servants, public property and other public spaces.

Protecting the right to record is critical to preserving the countless citizen videos and photographs depicting violations from around the world because they not only serve to inform, they are also useful pieces of evidence for subsequent criminal prosecution. Unfortunately, law enforcement officers have gained a reputation for intimidating, threatening or even assaulting civilian witnesses who record police malfeasance. Governments have also been known to hold a disdain for camera-wielding civilians because they expose their atrocities, and as a result countries like Spain have taken steps to ban the filming and photographing of police officers. In a law passed by the Spanish parliament aimed at gagging citizen media (The Citizens Security Law of 2015), individuals can be fined up to €30,000 for ‘disseminating photographs of police officers that are deemed to endanger them or their operations.’ Some have already been targeted using this law, including a woman who was fined €800 for posting on her facebook the picture she took of a police car parked in a spot reserved for persons with disability.

In the United States, the right to record has been litigated in court with a conclusion being reached that it is a right which falls within the ambit of 1^st Amendment rights of the U.S. constitution, which covers rights such as free speech and free press. In the case of Simon Glik vs. John Cunniffe, the U.S. Court of Appeals held, inter-alia, that:

“Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs”… a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”

Also noteworthy in the court’s unanimous ruling is its statement rejecting the notion that a distinction needs to be drawn based on the fact that Simon Glik is not a reporter:

“…changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw. The proliferation of electronic devices with video-recording capability means that many of our images of current events come from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

As progressive as the appeals court proved to be in upholding the significance of civilian journalists and citizen media, one is reminded that this is not the situation in many countries in Africa where we constantly see government suppression using tactics such as surveillance, internet shut downs and arrests in order to intimidate any citizen who attempts to exercise their right to freedom of expression as guaranteed under international law. In 2018 for instance, Tanzania took it a step further and used legislation to impose restrictions on the dissemination of online content.

We must however continue to demand accountability and compliance from erring states until their laws and actions align with international standards.

[1] Human Rights Committee General Comment 34 (2011) para. 15.

About the Author:

Adebayo Okeowo is the Advocacy Coordinator at the Centre for Human Rights. This article is an excerpt from his PhD thesis focused on using citizen media to advance accountability for human rights violations.