ings of the marketplace are so complex as to produce perverse effects. In the interest of preserving pluralism, the Swedish government subsidises the second largest newspaper in a community. The result is that papers have been known to struggle not to become No. 1, lest they lose their state subsidies. The temptation for new democracies to imitate such complicated models with their national press councils, codes of conduct, official ombudsmen, and the blurring of the separation of the press from the state - often seems overwhelming. The more or less uninterrupted democratic traditions of countries with such systems can generally be counted upon to prevent most (but certainly not all) abuses of such laws by governments. When they are blindly transposed to new democracies, tradition cannot be counted upon as a check against governmental misuse of power. A good example is the continued existence in Western democracies like France and Germany of laws against insulting the President of the Republic. Such laws were conceived for parliamentary systems where the president symbolises national sovereignty and has moral authority but no direct political role. Since Charles de Gaulle, the law has never been invoked in France, while it is still considered valid in Germany, where the president is a force morally but a figurehead politically. Journalists are still jailed under a similar law in Turkey, which may be why Kazakhstan found it expedient to enact a like statute and to use it to imprison a historian who accused the Kazakh president in print of being a tool of Russia. The Kazakh public prosecutor justified the detention to visiting Western journalists on the grounds that the alleged offender was being prosecuted under a law that is perfectly normal in the West. The historian was released on "humanitarian" grounds, but the law is still on the books and has recently been invoked once again to jail critics of the president. Newly sovereign Slovakia recently enacted a similar "Western-style" statute. Likewise, the Kazakh authorities accused a leading Russian-language opposition paper of antiSemitism, an apparently groundless accusation. But the charge could have served as a plausible pretext for a ban that would have been difficult for distant foreign media to verify. Still another paper was suspended for allegedly "provoking inter-ethnic tension" in Kazakhstan. In addition to a basic constitutional guarantee of press freedom, an advanced modern democracy also needs laws that guarantee maximum public access to official records and documents so that citizens may be informed of public business and gain a legal right of access to the meetings of public bodies. These are known respectively as Freedom of Information (FOI) acts and "Sunshine" laws. The premise of FOI acts was contained in the world's first free press law, Sweden's Freedom of the Press Act of 1766. The United States did not enact an FOI act until 1966, and Britain still has none. There is a laudable but imperfect enactment of FOI principles in the new Russian mass media law, although it has, like the U.S. law, many questionable categories of exemptions. (The U.S. list includes national defence, foreign policy, trade secrets, personnel files, and the location of oil wells). Drafts of the new Czech constitution also contain FOI principles. A third category of law is also needed - reasonable libel legislation to protect the individual, without obstructing press freedom. This is especially important in countries where the communist party or the secret police used to decide without legal norms that the media should turn somebody into a hero or a villain. Libel legislation to protect citizens against unjustified defamation was unknown in Soviet-bloc legal systems. Typically, the law provided that one could be prosecuted for slandering the state or its institutions but not a private person. The result, today, is that many journalists think that press freedom means that they may publish any unverified rumours or accusations. Clear rules of the game are in order. For the press to play its role in a democracy as the watchdog of society, it must be free to call into question the actions of individuals. "You cannot disclose evil without naming the doers of evil," said U.S. Supreme Court Justice Louis Brandeis in the landmark 1931 case striking down a Minnesota state law under which an offensively racist publication, that also exposed the corruption of leading local officials, was to be outlawed. The U.S. Supreme Court has gone even further to rule that the press may make honest mistakes and that money damages may not be collected - even if a story proves to be untrue - unless actual harm is demonstrated. As fragile and weak as the press may be compared to government, the same press is undoubtedly powerful compared to the individual. Hence, the need for the private persons to be able to defend their reputations in court. CSCE ODIHR BULLETIN Vol. 2, No. 1 15