In Europe today journalists are threatened or even put in prison for merely doing their job. Individuals who provide information to the Media about abuse of power or corruption run the risk of dismissal or worse. Such tendencies undermine democracy and must be countered through a clearly rights-based Media policy based on the principle of freedom of expression.
The purpose of journalism is not to please power-holders or be the mouth-piece of governments. Indeed, the Media have an important role as a “public watchdog” and to inform the public about relevant developments in society, including those which may embarrass the powerful and wealthy.
The Court of Human Rights in Strasbourg has stated that freedom of expression might include the dissemination of information that “offend, shock or disturb”. This was an important clarification and underlined that it must be possible for the Media to be controversial.(1)
This does not mean that there are no limits to freedom. Hate speech, incitement to violence and the dissemination of child pornography are not allowed. The European Convention clarifies that the state is allowed to introduce restrictions, for instance, to protect national security and public safety. (2)
The room for such exceptions should however be regulated by law and be interpreted narrowly. It must be clear that critical reporting is allowed, including about activities of authorities or private companies as well as individual politicians or businessmen.
The appeals for the release of imprisoned journalists relate to those who are penalized only because of critical or otherwise controversial reporting. In this area it is a major problem that defamation is still criminalized in several parts of Europe. Laws are in place which make it a criminal offence to say or publish true or false facts or opinions that offend a person or undermine his or her reputation.
The OSCE Representative on Freedom of the Media, Miklos Haraszti, has recommended that offences against “honor and dignity” should be de-criminalized and that such cases in the future would be dealt with in civil-law courts. The mere existence of criminal defamation laws could intimidate journalists and cause an unfortunate self-censorship. I agree with this assessment.
A new report within the Parliamentary Assembly of the Council of Europe proposes that prison sentences no longer be used in cases of defamation. Furthermore, it suggests that public figures should not have more protection in defamation laws than ordinary citizens.(3)
Indeed, it has already been established that the margin for criticism must be broader in the case of politicians, they have to accept that their words and actions are open to a higher degree of scrutiny by both journalists and the public at large. (4)
This discussion is of paramount importance and should include the role of self-regulatory mechanisms within the Media. There have been encouraging results in countries where media representatives have developed Codes of Ethics and designed their own special procedures to enforce professional standards, for instance, through Press Councils or Press Ombudsmen. Media outlets have matured, the public have got better protection against abuse and the right of reply has been enhanced.
Decriminalizing defamation and increasing the relevance of self-regulatory mechanisms would not protect the Media from civil-law charges. The report mentioned above within the Parliamentary Assembly raises the problem of very high damages which are not in proportion to the actual injury. If such charges potentially target individual journalists, this might have a chilling effect.
Some countries have introduced a system of responsible publishers in which the legal accountability is placed on one clearly defined authority within the Media enterprise – normally the publisher or the editor. Such a system puts the responsibility where it belongs and protects the individual journalist from the risk of having to pay damages.
Another pillar in a rights-based Media policy is to ensure the protection of sources of information. Journalists should be free to receive information, also anonymously, from everyone, including government employees. This right should be confirmed in national law: no one should be allowed to investigate into journalist sources. Not even judges should be able to order media to reveal their confidential sources.
The Strasbourg Court has stated that the protection of journalist sources is one of the basic conditions for press freedom and that an order to disclose a source could not be justified unless there is an overriding requirement in the public interest.(5) Indeed, every democratic society should welcome and protect “whistle blowers” - they are a safety valve against the abuse of power in both public and private enterprises.
In recent years some of the most leading investigative journalists have not only found their sources scared into silence, they have themselves fallen victim to the most brutal contract killing: Anna Politkovskaya in Russia, Hrant Dink in Turkey, Georgyi Gongadze in Ukraine and Elmar Huseynov in Azerbaijan. No effort must be spared to apprehend and bring to justice not only the actual killers but also those who ordered these murders.
Such heinous crimes may make other journalists more cautious and thereby cause self-censorship. Governments must therefore demonstrate more forcefully that they are prepared to protect freedom of media not only in words, but also by way of concrete action.
An immediate step would be to release all those who have been imprisoned because of their journalistic work and to declare a moratorium on the use of criminal defamation laws.
Thomas Hammarberg
Notes
(1) Handyside v. United Kingdom, judgment of 7.12.1976; para 49
(2) European Convention on Human Rights, Article 10 para 2
(3)Towards decriminalisation of defamation
Committee on Legal Affairs and Human Rights, Rapporteur: Mr Jaume Bartumeu Cassany, Doc. 11305, 14 May 2007
(4) Lingens v. Austria, 8 July 1986, para 42. European Court of Human Rights
(5) Goodwin v. United Kingdom judgment 27.03.1996; paras 39-40; see also Committee of Ministers Recommendation (2000) 7 on the right of journalists not to disclose their sources of information