Constitutional and legal framework for the regulation...

Constitutional and Legal Framework for Regulating Information Relations

The 1993 Constitution of the United States, its basic rule for the regulation of information relations in connection with and about publicly available information contains in Part 5 of Art. 29. In its content it is very capacious, although in form it is extremely laconic: "Freedom of mass information is guaranteed. Censorship is prohibited & quot ;. At the same time, in the general context of the Constitution, integrating the content of other constitutional norms, it acquires the potential for its effective regulatory impact, specificity and systemic nature.

Enrichment of the content of freedom of mass information is, first of all, the norms contained in other parts of Art. 29 and guarantee freedom of thought and speech, the right to freely seek, receive, transmit, produce and disseminate information in any lawful way, inadmissibility of compelling a person to express his opinions

and beliefs or rejection of them. Thus, the structure of this constitutional article emphasizes, firstly, the relative isolation of these freedoms; secondly, their deep genetic relationship; third, the complementarity of their legal content. Among the constitutional guarantees of freedom of mass information are also the freedom of economic activity and the right of private property, as stipulated in art. 8, 34 and 35 of the US Constitution, as well as the principle of ideological diversity (Article 13), which provides that no ideology can be established as a state or mandatory. This laid the foundation for information pluralism .

As the constitutional guarantees of the freedom of the mass media, the norms establishing the responsibility of officials for concealing facts and circumstances that pose a threat to life and health of people (Part 3, Clause 41), which fix the right of everyone to reliable information about the state of the environment (part 42), the freedom of creativity and teaching, the protection of intellectual property (Part 1, Article 44), the openness of the sessions of the chambers of the Federal Assembly (Part 2 of Article 100), the openness of the proceedings (Part 1, Article 123) e. The US Constitution also provides for the possibility of legislative release of certain categories of citizens from the obligation to give testimony (Part 2, Article 51), which was transformed by the Law on Mass Media as a duty of the journalist and the editorial board to preserve the confidentiality of the source of information (Article 41).

The general legal regime of information is based on the constitutional norm established in Art. 29, which has enshrined the right to freely search, receive, transmit, produce and disseminate information by any lawful means. In other words, the specified general mode of information , prescribes its openness and freedom of actions of subjects within the framework of the law. At the same time, the limits of their lawful behavior establish the principle of legality of actions of each subject.

These boundaries, in particular, are determined by other constitutional norms: the exercise of human and citizen rights and freedoms should not violate the rights and freedoms of others (Article 17); everyone has the right to inviolability of private life, personal and family secrets, protection of one's honor and good name (Article 23), etc.

Example from practice.


Recommendation No. 2 (11) of December 24, 1997

The Legal Information Chamber at the President of the United States has received a request from the Center "Law and Mass Media"; on whether the principle of the "presumption of innocence" in its legal sense, be a restriction on the professional activity of a journalist who is not an official.

The reason for the appeal to the Trial Chamber was the adoption by the State Duma of the Federal Assembly of the United States in the first reading of the bill "On Television Broadcasting and Broadcasting", Article 18, paragraph 1 of which establishes: "Broadcasters are obliged: ... not to disseminate information violating presumption of innocence, or predetermining a court decision ...

Having considered this appeal, the Trial Chamber came to the following conclusion.

The generally recognized legal principle of the presumption of innocence in United States law is formulated in Part 1 of Article 49 of the Constitution of the United States.

According to the norm contained in this article, everyone charged with a crime, that is, a person in respect of whom an appropriate decision was made in the manner provided for by the Code of Criminal Procedure of the RSFSR, is considered innocent until his guilt is proven in accordance with the procedure established by federal law and established which entered into legal force by a court verdict.

However, according to the Trial Chamber, the duty to observe the principle of the presumption of innocence in the sense of this constitutional norm extends only to those state bodies and their officials who have the power to impose restrictions on the rights and freedoms of the individual and citizen.

Only the court is given the right to recognize a person guilty of committing a crime with all legal consequences.

As for the journalists who conduct their own investigation or cover the course of the preliminary investigation in the criminal case, they, on the one hand, implement the constitutional norm on freedom of mass information, and on the other - fulfill their professional duty, informing readers about the circumstances that have public interest.

At the same time, journalists do not belong to the category of persons who have the power to restrict the rights and freedoms of a citizen. Therefore, no opinion of the journalist, sounded in the television and radio, contained in the newspaper publication, by virtue of this constitutional norm can not legally affect the right of a person to be considered innocent.

For the same reasons, it seems improper for broadcasters to "not distribute information ... predetermining a court decision". Indeed, only a court has the right to establish the culpability of a citizen. But this circumstance can not serve as a basis for restricting the nature of journalists, other persons (including representatives of the prosecution and defense, as well as victims, suspects, accused, etc.) to express their opinion on certain aspects of the preliminary investigation or trial, with the exception of cases where statements in the media of the said persons contain signs of crimes provided for in Ch. 31 "Crimes against Justice" Of the Criminal Code of the United States.

Thus, in the opinion of the Trial Chamber, the provision of the draft law on the need to further restrict the rights of journalists to disseminate information based on a possible violation of the principle of the presumption of innocence, as well as predetermining a court decision, is an unreasonable attempt to significantly narrow the limits of freedom of mass information established by the Constitution The United States.

The use of such a rule in the proposed wording in practice may mean an actual ban on conducting investigative journalism, commenting on the preliminary investigation and the trial of cases of significant public interest in the media.

The Trial Chamber believes that the totality of the duties of the journalist established by the current legislation to verify the reliability of the information reported to him, to respect the rights, legitimate interests, honor and dignity of citizens and organizations, not to use the media for disclosure of specially protected secrets (including secrets of investigation, secrets correspondence, telephone conversations) is enough to provide protection, including judicial, of the rights and legitimate interests of citizens and organizations from the possible abuse of freedom of the ma information.

Considering the foregoing, the Trial Chamber refers to the Committee on Information Policy and Communications of the State Duma of the Federal Assembly of the United States with a recommendation to return to the discussion of the rule contained in Cl. 18 of the draft federal law "On television broadcasting and broadcasting"; taking into account the presented arguments.

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