dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3. It is also inconsistent with paragraph 3 to prohibit a site or an information dissemination system from publishing material solely on the basis that it may be critical of the government or the political social system espoused by the government”.13 13 Hill v. Colorado (2000), available at https://www.law.cornell.edu/supct/html/98-1856.ZS.html(accessed January 13, 2021): “Unlawful for any person within 100 feet of a health care facility’s entrance to ‘knowingly approach’ within 8 feet of another person, without that person’s consent, in order to pass ‘a leaflet or handbill to, display a sign to, or engage in oral protest, education, or counseling with [that] person.’”
14 14 Spain’s first professor of media business and its first author to write on the subject.
15 15 Comment n. 25, Human Rights Committee (2011), Freedom of expression and political rights n. 20.
16 16 See the Preface of this book by Professor Monroe Price as well as his book Free Expression, Globalism and the New Strategic Communication (2014) and other previous contributions related to Technologies of Freedom, specially Ithiel de Sola Pool university \9 1983).
17 17 Judgment of the Court (Grand Chamber), May 13, 2014. Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González. Available in English at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62012CJ0131&from=EN (accessed January 13, 2021).
18 18 Journalist and blogger: Diario 14 y medio: https://twitter.com/14ymedio (accessed January 13, 2021).
4 Communication Rights in the United Nations System From Declarations to “Soft Law”
Leopoldo Abad Alcalá
Within states’ internal contexts, regulation of the communication rights arising from the Universal Declaration of Human Rights (UDHR) or the International Covenant on Civil and Political Rights (ICCPR) has been developing via a gradual process of progress and setbacks that is shaped by each country’s historical and political vicissitudes. However, and despite the undeniable theoretical and philosophical reflection on the right of any person to communicate his or her ideas (a pioneer here was the Salamanca school led by Francisco de Vitoria, who formulated the idea of ius communicationis [Desantes Guanter 1989]), the shaping of the international legal order as a relational system whose subjects are states prevented any initiative to recognize communication rights in a universal, or even regional, way.
The First Steps: Article 19 of the Universal Declaration of Human Rights
The failure of the League of Nations and the atrocities committed by states in World War II inspired the need for a new model of interactions for international society, with individuals taking center stage relative to the main violator of their rights: their own states.1 This is the historical context in which the appearance of the United Nations (UN) should be understood. It was created through the Charter of the United Nations, promulgated in San Francisco on June 26, 1945 (Escobar de la Serna 2004, p. 112). In reality, this document limits itself to formulating the principle of international protection of such rights and of fundamental freedoms without developing that principle through specific rules.
It would only be with the UDHR, approved by UN General Assembly Resolution 217 on December 10, 1948, that a recognition of human rights (with communication rights occupying a principal place among them) would emerge with a truly universal will. It sought to subordinate – if not legally then morally – states’ behavior to the rights contained within it. The undoubted rooting in natural law of the declaration, the starting point of which is the undeniable dignity of the person, led to the document becoming established as a control parameter vis-à-vis states’ observance of human rights, even above their own regulations, and it confirmed the idea expressed by Hannah Arendt’s “right to have rights” (Arendt 1976, p. 296). This disruptive concept would not be welcomed by everyone in the same way, which largely explains why this catalog of rights was adopted as a declaration and not as a treaty or agreement. The declaration’s universal applicability2 reduced the legal precision of a large proportion of the rights recognized in it, but the inclusiveness that inspired it prevailed over a more legalistic orientation.
Such was the importance of the declaration that it became the common denominator in institutional discourse on human rights (Von Bernstorff 2008, p. 916). It is seen as a means for international public opinion to pressure states and has become customary international law (Humphrey 1979, p. 21) or, in the words of one of its main promoters, Eleanor Roosevelt, “the Magna Carta of mankind.”
The work of defending communication rights within the UN has taken place through progressive recognition of them. This process began with their inclusion in Article 193 of the UDHR, the influence of which is beyond any doubt, though a certain terminological imprecision in its drafting has detracted from its ability to be applied as a legal norm rather than as a specification of moral principles. Interpretations of Article 19 have been varied, ranging from those that emphasize its universal applicability to those that stress its all-encompassing conception of communicative activity, but its pioneering role in the international recognition of communication rights cannot be denied.
Arising from this Article is the process of divergence between freedom of expression and communication rights as realities that are related but distinguished depending on the purpose of each one, a difference that is referred to for the first time in the landmark work “Droit de l’Infomation,” by Terrou and Solal (1951, p. 6), who consider communication rights as the core of “the Communication Law.” Article 19 gave rise to the so-called dualist thesis, which differentiates between freedom of expression linked to the transmission of opinions and communication rights, whose object is transmission of information. It is true that this distinction is sometimes difficult to define: there are messages that mix both rights, and they are becoming increasingly common owing to the new communication media stemming from the omnipresence of digital technologies and the importance that social networks have acquired within the ways in which citizens access information. The debatable but accepted distinction between information and opinion (an example here is the European Convention of Human Rights (ECHR)4 – that established case law on the matter) may not make sense in present times, and the protection derived from Article 19 of the UDHR possibly should focus more on the idea of protecting freedom of expression and opinion as all-encompassing concepts applicable to all forms of communication than on the idea of seeking, receiving, and disseminating information and opinions. Both of these rights – freedom of expression and seeking, receiving, and disseminating information and opinions – can either be encapsulated as a group of communication rights or referred to generally as “communication rights,” though some simply refer to them as “freedom of expression.” But the main idea should be that the UDHR refers to rights, not just freedoms, with the latter being more in line with nineteenth-century conceptions. A more modern understanding is that the freedom aspect is part of how communication rights are exercised. As Desantes explains, “Existential rights, human rights, or fundamental rights, such as the right to information, would cease to be so if they could not be freely exercised.” In this way, freedom follows the fate of the fundamental right in all its weightlessness and unlimitedness. Freedom is the only way to exercise right (Desantes Guanter 2004, p. 115).
