Abstract
The internet is a global medium, but the law and policy implications of that statement are still unclear. Lee Bollinger, the president of Columbia University and a noted free-expression scholar; Agnés Callamard, the director of Columbia’s Global Freedom of Expression Initiative and the former executive director of the Article 19 organization; and their contributing authors seek clarity in this edited volume. Mostly, they succeed.
One goal of the book is finding global norms on protection for free expression despite the lack of institutions to create and enforce such norms. A second theme is how interconnected communication networks and legal and policy organizations are. Complications arise when the interests of sovereign nations and private corporations are factored into the equation.
Bollinger describes the book as part of an attempt to build “an integrated approach and understanding of freedom of expression and press freedom” (pp. xx-xi) across borders. To establish and protect norms of free expression globally, he adds, “we must see a willingness on the part of scholars, intellectual leaders, and policy makers around the world to reach across national, regional, and international—and intellectual—borders.”
As Callamard explains in an introductory chapter, much of the book’s approach and organization owes a debt to constructivist theories of international relations, notably Martha Finnemore and Kathryn Sikkink’s work on the three cycles of norm development: emergence, cascade, and internalization. Emergence is often led by “norm entrepreneurs” who lobby for change. Norm cascade occurs when norm adoption reaches a “tipping point” or critical mass among nations, often spurring more adoption. Internalization occurs when a norm becomes commonplace.
The book’s first two sections demonstrate the Finnemore–Sikkink approach. The authors attempt in Part I to identify norms that have emerged about specific areas of free expression, led by Toby Mendel’s helpful chapter on how to define a global norm, which he describes as “a standard that has sufficient authority to be able to influence the behavior of states reasonably consistently over time” (p. 52). For example, a norm has developed around the idea that broadcasting systems should have a blend of public, commercial, and community stations. Other authors in Part I have varying degrees of success finding norms on the right of access to information, political expression, defamation, and journalistic source protection.
It is important to note, as the authors generally do, that the norms are not accepted in all nations and describe a baseline of protection while leaving room for variations, or what the Europeans would call a “measure of appreciation” for national differences.
The five chapters in Part II deal with norm entrepreneurs working at a global or regional level. The most obvious example is the United Nations. Tarlach McGonagle and Emmanuel Vargas Penagos trace its trailblazing development of norms on free expression through the adoption of the Universal Declaration of Human Rights in 1948 to a period of consolidation and expansion symbolized by the adoption of the International Covenant on Civil and Political Rights (ICCPR), which is cited throughout the book as the world’s most influential human rights document. The search for coherence and consistency continues with the development and adoption of general comments and recommendations from U.N. committees and the work of the special rapporteur on freedom of opinion and expression.
Other chapters focus on the European Court of Human Rights (ECtHR), which Jan Oster states has been a strong influence on freedom of expression issues; the Inter-American Commission on Human Rights and Inter-American Court of Human Rights, which Catalina Botero-Marino credits with establishing norms against censorship and criminal defamation in Latin America; and the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, and regional human rights courts in East and West Africa that, according to Catherine Anite, have helped build norms against criminal defamation.
Part II wraps up with a chapter by Joel Simon and Elisabeth Witchel of the Committee to Protect Journalists (CPJ), who demonstrate the influence that a nongovernmental organization (NGO) can have by describing the work of the CPJ’s Global Campaign Against Impunity, which raises awareness about the unpunished killings of journalists.
While the first two parts of the book focus on norm-building successes and norm entrepreneurs, Part III reminds us that in a diverse and increasingly polarized world, things are never simple. Callamard and Sejal Parmar write that some issues may never reach a normative consensus, citing the example of hate speech regulation. Root causes of the international divide include a clash between classical libertarian theories of free expression and human rights systems’ concepts of equality and nondiscrimination, as well as the difficulty of defining hate speech.
Chinmayi Arun focuses on the disruptive energy of social media companies and their private governance systems, which have transformed the public sphere in both good and bad ways. China merits its own chapter, by Séverine Arsène, because of its size, influence, and outlier status on free expression. Arsène describes a nation that needs to connect with the world but wants to strictly control outside cultural influences simultaneously. The tensions have led China to advocate for internet sovereignty and to push for an intergovernmental framework for internet governance in line with its values.
China also plays a strong role in Alexander Cooley’s examination of “counternorms,” specifically the “international backlash against liberal democracy” (p. 309) characterized by the election of populist presidents in the United States, Hungary, and elsewhere. Partly as a reaction to global terrorism, Cooley says, even democratic nations have adopted authoritarian security measures. China and Russia have pushed world organizations and other nations to respect “civilizational diversity” and “traditional values” in opposition to the globalization of human rights norms. China has become a major development funder in Latin America and Africa without exerting pressure to adopt democratic reforms, unlike traditional Western lenders. China and Russia have also picked up the slack left by retrenching Western media organizations by expanding news and broadcasting operations in Africa and Latin America, further spreading their values.
Part IV provides brief glimpses of five cases that have had far-reaching effects across borders: New York Times v. Sullivan, the 1964 U.S. Supreme Court decision that changed American libel law and influenced other nations to do the same; Handyside v. United Kingdom, a 1976 ECtHR decision with an oft-cited passage about the importance of free expression in a democratic society; Claude Reyes et al. v. Chile, a 2006 Inter-American Court of Human Rights decision that tied the right to free expression to a right of access to government information; Lohé Issa Konaté v. Burkina Faso, an African Court on Human and Peoples’ Rights decision that has influenced other courts to limit or kill criminal defamation laws; and Court of Justice of the European Union’s 2014 decision in the Google Spain case, best known for establishing the “right to be forgotten,” which has been widely adopted and modified by courts and legislatures.
The last section of the book highlights the theme of interconnectedness that runs throughout. All of the cases discussed in Part IV have been cited, debated, rejected, or accepted in courts worldwide, which has contributed to norm-building. Language about protecting free expression is remarkably similar in many global and regional treaties and conventions on human rights partly because the drafting organizations borrowed from each other. NGOs like the CPJ succeed or fail in their goals because of the alliances they build with the United Nations and regional rights organizations. The interconnectedness also applies to counternorms, of course. As Bollinger states in the Preface, what happens to communication channels in one nation has ripple effects around the globe: “censorship anywhere is censorship everywhere” (p. xv).
The book spends very little time on U.S. law, which is by design. The book’s aim is to introduce readers who have focused primarily on American law to the shared values of free speech around the world. Both Bollinger and eminent First Amendment scholar Frederick Schauer, who wrote an introductory chapter, note that the study of communications law tends to be “highly provincial,” as Schauer put it, which is no longer tenable.
U.S. teachers and researchers who are beginning to explore international communication law more closely and those who have been doing so for a while will learn a great deal from this book, including the ways that “soft power,” often undervalued in U.S. law, has considerable influence internationally.
The book would make a good supplemental text for graduate media law courses, or even the primary text in a global media law class. Some chapters about norms and entrepreneurial organizations would be useful as supplemental material in undergraduate media law classes. It is, as Disney has told us, a small world after all, and this book is a valuable resource for understanding it better.