Some contributors, mainly from Spain, but also from Latin America, build upon the work of José María Desantes (+2004), a Spanish academic who held the first chair devoted to the study of Communication law at a European University in 1976. The purpose of exploring the works of an author who fully believed in the universality of communication rights is two-fold: first, to produce the first ever English-language work that collects the most relevant of Desantes’ ideas – he only published in Spanish during his lifetime – in order to start a conversation with researchers from civil law and common law countries who base their work in other theoretical frameworks that study communication law; and second, to identify the ideas and concepts present in Desantes’ work that are universal and that intersect with concepts from other approaches to communication law. The ultimate purpose is to create bridges that allow one to overcome the language barrier and start dialogues that show the path forward toward identifying a universal set of communication law concepts that help build a global theory of communication rights based around their universal characteristics but that, nonetheless, acknowledge and respect existing differences.
While this volume does admit for variations in terms and for classical, and still widely used acceptations such as “freedom of expression” or “free speech,” the term “communication rights” is preferred by many of our contributors, who embrace doctrine published from 1948 onwards, also taking into account influential work and jurisprudence produced in the United States; works, regulation, and jurisprudence from the European Union and its member states; from other countries around the world and from international legal systems. Influential Latin American authors are also given their due and concepts and frameworks such as those introduced by Antonio Pasquali (+2019) or Jose Marques de Melo (+2018) are very present in this work.
Terms like “communication law” are preferred in order to allow concepts like the French “droit de l’information et de la communication,” the Spanish “derecho de la información” (the term preferred by Desantes) or “First Amendment Law” as used by some in the United States to engage in dialogue that avoids confusion with related concepts such as, for example, “access to information” or “information law.”
The task of tackling phenomena related to communication rights demands linguistic and conceptual analyses of terminology (for example, communication, information, facts, opinions, and ideas) that have different meanings and connotations across languages. For this purpose, a compromise was necessary.
This compromise is justified by the fact that this work is published in the English language and, as it concerns itself precisely with universality, “communication rights,” “communication law,” and “communication ethics” are terms that allow for a global dialogue to emerge from the various chapters in this work, despite any terminological differences between academic disciplines, legal systems, and languages. Using these concepts as a bridge, allows us to successfully compare the implications of the phenomena we alluded to earlier, while avoiding possible confusions in terms of terminology.
Such a compromise also enables the possibility of translating into English, sometimes for the first time, contributions from many notable authors from non-English speaking countries around the world. For example, in the very first chapter of this book, Prof. Ignacio Bel (a coeditor of this volume) reviews the basic ideas contained in Desantes’ La información como derecho (Communication as a Right), an essential reference on the areas of communication law and the ethical duties and rights of journalists, a work that is essential reading in Spanish Communication Law doctrine that has also influenced the rest of the Spanish-speaking world.
Seeking universal definitions goes beyond enabling academic exchange that uses accurate terms. Because terms are defined in different ways in different languages, they also enjoy different degrees of constitutional protection in different countries. Divergences in this respect also reflect the very different legal traditions that exist around the world. This book intends to be a contribution toward more universal definitions of communication rights that can lead to more universal conceptions that nonetheless respect existing differences by fostering dialogue among nations and their different legal traditions, and their historical, social, and economic realities.
Beyond terminological explorations, by comparing the substance of communication rights in online and offline environments, this volume examines how these concepts and their ideological foundations can be adapted and updated to serve present and future societies, whatever the communication platform or medium. Comparison also allows authors to shed light on how certain aspects of communication rights endure without the need of updating and are still valid for helping societies face new communication-related challenges.
Much has changed, but so much remains the same. All this means that while Article 19 of the UDHR is the starting point for thinking about communication law and communication rights, there is a constant need to revisit communication rights, and to rethink certain aspects, particularly in the context of current technological developments.
Many of the core concepts of communication rights ought to be reinterpreted in light of the challenges that arise from a constantly connected society. And yet, many other concepts still apply, whether we are talking about information dissemination in traditional media such as newspapers, or on social media platforms such as Twitter or Facebook, even as new types of media made possible by recent technologies pose new challenges that ought to be evaluated from the points of view of communication law and ethics.
In recent years, social networks have been viewed in many quarters as platforms that threaten democracy itself and that present substantial challenges to communication rights.
For example, they are held responsible for enabling a system for the uncontrolled dissemination of unfounded rumors, disinformation, and misinformation (so-called fake news). For some governments, the press itself is also seen as the enemy and the main cause for the spread of alleged disinformation. Governments also see a great threat in online whistleblowing and have sought to criminalize the journalists that also use these as their sources.
Though these are in many respects, new challenges, journalists and editors have in fact always had to face the challenges posed by biased sources, disinformation, misinformation, a lack of factual rigor, and the need to rely on confidential informants and, of course, the hostility of those in power that the press seeks to hold to account. It is here where more universal reflections related to communication law and ethics gain relevance for the purposes of identifying the constants that allow communication professionals to respond to these challenges as well as those aspects that must change and that allows us to identify the legal and ethical norms that are still effective in solving those challenges.
Though recent technological innovations, for example, those related to artificial intelligence, mean that even some regulation in these areas is already outdated, the principles of communication law still apply to media forms that are in constant change. Radio and television are no longer limited by the need for a license from a regulatory authority, as content can be broadcast via the Internet. Audiovisual content, including the news, can be spread easily over the Internet at near instant speeds and without regard to national borders. Governments usually struggle to keep the pace with their regulatory efforts and face difficult jurisdictional challenges as a result of these technologies.
Social media networks, as they exist today, are also seen as a threat to the communication rights of individuals. This may be because the platforms wield great power over individual expression online and exercise it opaquely and inconsistently, sometimes with the complicity of states that fail to hold these companies responsible for undue interferences with the communication rights of individuals. This may also be because platforms fail to protect other individuals from harmful expression such as hate speech, discrimination, and other forms of technology-enabled vitriol, abuse, and trauma and, because states face difficult jurisdictional questions when trying to protect rights that are often infringed upon, beyond their national borders.