Addressing the Right to Communicate as a Capability
32 Pages Posted: 16 Mar 2018 Last revised: 14 Aug 2018
Date Written: March 16, 2018
The right to communicate has been a basic tenet of democracies for centuries, more commonly referred to as a right for free speech or a free press. Other regulations aimed at ensuring people can communicate, such as universal service obligations that guarantee the opportunity to actively communicate, were not discussed as arising from rights. As such, the right to communicate was characterized as a “negative right,” deemed to be honored if governments did not abridge the freedoms it guaranteed, and not a “positive right,” which sets obligations on governments or market operators to act. Nevertheless, theoretical attempts were made over the years to expand free expression and recognize it as a “positive right.” Such was the case of the right of access to the media suggested by Jerome Barron in the 1960s. However, as media and telecommunications were traditionally seen as separate regulatory silos, the two disparate regulatory regimes, one forbidding obstruction, the other ensuring access never converged. With the high cost of establishing media outlets on the one hand, and their limited number and capacity on the other only a limited number of people could actually utilize the media to have their voices heard. Among other reasons this was due to the fact that the overarching theoretical basis for the regulation was based on utilitarian principles that are goal-oriented rather than rights-based. With the advent of contemporary media, an opportunity for many more individuals to actively communicate emerged. Policy developments have indeed sought to redefine the right to communicate, this time turning the focus to positive rights. A growing number of countries and international treaties have been recognizing access to broadband as a human right emerging from a right to communicate, and while this traditionally could have been seen as a telecommunications policy issue, the nature of contemporary media advise it is a right effecting the ability to sound a voice as well. In the analysis proposed here we wish to expand on this notion and to make a new conceptual connection between speech, communication and rights through the prism of capabilities. The capabilities approach developed by Amartya Sen, is a right-based economic theory challenging both utilitarianism and conventional approaches to redistributive justice. It places the individual, as well as her unique needs and functionings, at its center. As such, capabilities seem a natural basis for the development of a rights-based communications policy in the new media age; however, only rarely has the capabilities approach been applied to communicating, let alone in the context of the right to communicate. This paper offers a new interpretation of the right to communicate based on Sen’s capabilities approach; an interpretation that will help scholars and practitioners alike develop a tool for analyzing the contemporary right to communicate. In order to do so the paper will present Sen’s scholarship on capabilities and on human rights, and applications that have been made in the past to media and communications, applying them within a conversation focusing on the right to communicate.
Keywords: capabilities, rights, universal access, free speech, free press, justice
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