Academic journal article Journal of Information Ethics

Legal Formulations of a Human Right to Information: Defining a Global Consensus

Academic journal article Journal of Information Ethics

Legal Formulations of a Human Right to Information: Defining a Global Consensus

Article excerpt

There is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of defi- nitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through a nation's sub-constitutional legal process (Right2Info. org, 20i2a). Also, at the supra-national level, various rights to information are being staked out, bit by bit, region by region, through treaties and case law (Right2Info.org, 20i2c). There is also a slowly developing right of access to information based in national constitutions across the globe (Right2Info.org, 20i2b). In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. This special status of trumping other laws, while still technically granting the right as a matter of law, does at least suggest that such constitutional rights have a source and justification that goes beyond mere law.

Just as at the other levels, countries grant access to particular types of information through their constitutions. The definition of the right of access to information and the scope of such right can typically be determined by the underlying justification for creating such a right. To date, the most frequent method of finding a constitutional basis for such a right is finding that the right of access to information is a necessary corollary to constitutional grants of freedom of speech or other freedoms explicitly stated in the constitution. The goals of this article are to assess the kinds of information rights and their prevalence; to determine if there is a global consensus that would strengthen assertions that there is an international human right to information; and to formulate a comprehensive statement of the human right of access to information that is being described through these discrete applications.

Without being sidelined into deep philosophical arguments about the nature of rights themselves, it is useful to consider the common heuristic of distinguishing rights as either positive or negative. Frank B. Cross (2000) describes the distinction in its simplest terms stating that "[o]ne category is a right to be free from government, while the other is a right to command government action" (p. 864, emphasis in the original). Negative rights prevent other people or government entities from interfering with an individual's exercise of that right, while positive rights create an obligation on other people or government entities to take action to provide the means to the individual to exercise that right. The current body of access to information law is largely an enumeration of negative rights interfering with an individual's access to information. A comprehensive statement of a right of access to information will fall much closer to the positive rights conception of human rights.

A final preliminary thought: of what use is such a formal statement? While I cite a growing trend of recognizing a constitutional right to information, the news and reports show increasing limitations on access to information-especially on the grounds of national security. Based on its annual report on press freedom, the watchdog organization Freedom House reported that "Global press freedom has fallen to its lowest level in over a decade" (Karlekar & Dunham, 20i4, p. i). In its web page regarding the report the organization stated that the

decline was driven in part by major regression in several Middle Eastern states, including Egypt, Libya, and Jordan; marked setbacks in Turkey, Ukraine, and a number of countries in East Africa; and deterioration in the relatively open media environment of the United States [FreedomHouse, 20i4, para. i].

The last decade has seen the mass re-classification of U.S. government documents (Scott, 2006), and the U. …

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