Freedom of Expression and Media Censorship
Government’s decision to launch an official boycott of l’express through its departments is wrong in principle and in law. The newly appointed Attorney General should have advised Cabinet that the decision to boycott the newspaper is a violation of the freedom of expression, a fundamental right enjoyed by all citizens of democratic Mauritius and guaranteed by section 12 of our Constitution. Section 12 provides that the right to freedom of expression shall include freedom to hold opinions and to receive and impart information and ideas without interference. It is understood that interference includes interference by a public authority of the kind envisaged by government. Of course, Section 12 was never meant to be an absolute right and is subject to such exceptions as are reasonably necessary in a democratic society. No society, for instance, can allow people to call for violence or racial hatred against others. This however is a far cry from the right to dissent by expressing unpopular, even shocking news that challenge the status quo.
In his leading speech in the case of Reynolds v Times Newspapers 2001 2 AC 127 Lord Nicholls described freedom of expression as the starting point in any balancing of interests. He went on to explain: “The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration in this case. At a pragmatic level freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy.”
L’express no doubt behaved very badly during the last electoral campaign. Its coverage of the campaign was considered partial by most observers, especially when it sought to create the impression that the Alliance de l’Avenir was losing ground nearing the polling day. It was not the first time that the readers of l’express were being subjected to this treatment. Some five years ago it gave erroneous figures relating to the attendance at the meeting of the Alliance Sociale on Labour Day. To give a veneer of objectivity to its report, it stated that its source for estimating the attendance was from the police headquarters. The statement of l’expess was immediately denied by the then Commissioner of Police.
The paper clearly had its motives to try to influence voters in favour one party against the other. We should nevertheless bear in mind that neither at the last elections nor in the previous one did l’express manage to influence the electorate. The results of the elections speak for themselves.
In the case of R v Central Independent Television plc (1994) Fam 192, Lord Hoffman LJ identified the dangers of State control of expression as follows: “Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publications may cause needless pain, distress and damage to individuals or harm to other aspects of public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however motivated, think should not be published. It means the right to say things which “right-thinking people” regard as dangerous or irresponsible.”
Whatever may have been the motives of the newspaper and its editors, the decision of government cannot be justified. Of course it could have sued l’express for false publication but a policy of boycott is tantamount to censorship and cannot be condoned. Freedom of expression is important not for the opinion we approve of, but for those we find to be contrary to facts, wrong and offensive. Free speech helps us to identify what is true and to dismiss what is false. It is an important safety valve. It acts as a brake on the abuse of power by public officials.
At best, media censorship is futile and counter-productive. We value in Mauritius the right to dissent by expressing different views however unpopular or blatantly unacceptable they may be. Our society is one of tolerance and respect. The freedom of the press to carry out its functions without interference from the State is far too important compared to the kind of petty bickering which has motivated the present decision.
One can understand the motivations of the politicians in the present circumstances. One can also understand why the press in general has not rushed to sympathise with Jean Claude de l’Estrac, the Chairman of La Sentinelle, publisher of l’express, in his condemnation of the government’s censure. This is because l’express kept quiet or chose to look the other way and, indeed, was laughing its way to the bank when the Jugnauth-Bérenger government (2000-05) had recourse to the same discriminating and censorship/boycott tactics against other publications they perceived as being anti-MMM-MSM. It is this attitude of indifference then adopted by l’express that can explain the current absence of solidarity with l’express. However, there is also a matter of general principles.
Lord Bingham explains the situation: “In a modern developed society it is only a small minority of citizens who can participate in the discussions and decisions which shape the public life of that society. The majority can participate only directly, by exercising their rights as citizens to vote, express their opinions make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is largely through the media of course including the press that they will be so alerted and informed. For this reason the courts here and elsewhere have recognised the cardinal importance of press freedom…”