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INTERNATIONAL PRECEDENTS - MEDIA LAW AND FREEDOM OF EXPRESSION

(DANICOM SEMINAR) 15 APRIL 2008

Tyge Trieradvocate, lecturer University of Copenhagen

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ARTICLE 10 - ECHR

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

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ARTICLE 19 - ICCPR

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public

order (ordre public), or of public health or morals.

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Media law in practice

• Injunction• Seizure• Protection of sources• Defamation/libel• Civil cases/damages• Privacy• Registration• Banning• Surveillance• Government/external pressure

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ECHR – Case-Law, examples including key quotes

•Bladet Tromsø and Stensaas v. Norway 1999

•Observer and Guardian v. United Kingdom 1991

•Jersild v. Denmark 1994

•Bergens Tidende v. Norway 2000

•Thoma v. Luxembourg 2001

•Unabhängige Initiative Informationvielfalt v. Austria 2002

•Krone Verlag & Co. (no. 2) v. Austria 2003

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ECHR – Case-Law, examples including key quotes (continued)

• Pedersen and Baadsgaard v. Denmark 2004• Fressoz and Roire v. France 1999• Radio Twist v. Slovakia 2006• Dabrowski v. Poland 2006• Tonsbergs Blad and Haukom v. Norway 2007• Roemen and Schmit v. Luxembourg 2003

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Observer and Guardian v. United Kingdom 1991

“a) Freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.”

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Observer and Guardian v. United Kingdom 1991

“(b) These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the "interests of national security" or for "maintaining the authority of the judiciary", it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog".”

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Bladet Tromsø and Stensaas v. Norway 1999

“In the view of the Court, the press should normally be entitled, when contributing to public debate on matters of legitimate concern, to rely on the contents of official reports without having to undertake independent research. Otherwise, the vital public-watchdog role of the press may be undermined.”

(68)

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Bladet Tromsø and Stensaas v. Norway 1999

“The Court does not attach significance to any discrepancies, pointed to by the Government, between the report and the publications made by Mr Lindberg in Bladet Tromsø one year before in quite a different capacity, namely as a freelance journalist and an author.”

(69)

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Bladet Tromsø and Stensaas v. Norway 1999

“The newspaper was, it is true, already aware from the reactions to Mr Lindberg’s statements in April 1988 that the crew disputed his competence and the truth of any allegations of “beastly killing methods” (see paragraph 9 above). It must have been evident to the paper that the Lindberg report was liable to be controverted by the crew members. Taken on its own, this cannot be considered decisive for whether the newspaper had a duty to verify the truth of the critical factual statements contained in the report before it could exercise its freedom of expression under Article 10 of the Convention.”

(70)

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Bladet Tromsø and Stensaas v. Norway 1999

“In the Court’s opinion, the attitude expressed by the Ministry before 20 July 1988 does not constitute a ground for considering that it was unreasonable for the newspaper to regard as reliable the information contained in the report, including the four statements published on 20 July to the effect that specific but unnamed seal hunters had killed female harp seals. In fact, the District Court later found that one such allegation (item 1.5) had been proved true.”

(71)

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Bladet Tromsø and Stensaas v. Norway 1999

“Having regard to the various factors limiting the likely harm to the individual seal hunters’ reputation and to the situation as it presented itself to Bladet Tromsø at the relevant time, the Court considers that the paper could reasonably rely on the official Lindberg report, without being required to carry out its own research into the accuracy of the facts reported. It sees no reason to doubt that the newspaper acted in good faith in this respect.”

(72)

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Jersild v. Denmark 1994

“In considering the "duties and responsibilities" of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media. The audiovisual media have means of conveying through images meanings which the print media are not able to impart.”

(31)

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Jersild v. Denmark 1994

“In this context the Court recalls that Article 10 (art. 10) protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed”

(31)

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Bergens Tidende v. Norway 2000

“However, the Court recalls that news reporting based on interviews constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog”. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists.”

(57)

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Thoma v. Luxemburg 2001

“The Court reiterates that “punishment of a journalist for assisting in the dissemination of statements made by another person ... would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.” ”

(62)

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Thoma v. Luxemburg 2001

“A general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas.”

(64)

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Unabhängige Initiative Informationvielfalt v. Austria 2002

“The degree of precision for establishing the well-foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, in particular when expressing his opinion in the form of a value judgment. In the Court's opinion, the applicant published what may be considered to have been fair comment on a matter of public interest, that is a value judgment, and the Court disagrees with the qualification of that statement by the Austrian courts.”

(46)

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Krone Verlag & Co. (no. 2) v. Austria 2003

“The Court agrees with the reasons given by the Procurator's Office. The applicant company could not have been expected to publish another notice, when it had a court decision in its favour, merely to take precaution for the eventuality that the decision could be quashed by the superior court, or for fear of further enforcement requests by the plaintiff and subsequent further imposition of a

coercive indemnity.”(44)

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Oberschlick v. Austria (no. 2) 01/07 1997

“In the Court's view, the applicant's article, and in particular the word Trottel, may certainly be considered polemical, but they did not on that account constitute a gratuitous personal attack as the author provided an objectively understandable explanation for them derived from Mr Haider's speech, which was itself provocative. As such they were part of the political discussion provoked by Mr Haider's speech and amount to an opinion, whose truth is not susceptible of proof. Such an opinion may, however, be excessive, in particular in the absence of any factual basis, but in the light of the above considerations that was not so in this instance”

(33)

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Oberschlick v. Austria (no. 2) 01/07 1997

It is true that calling a politician a Trottel in public may offend him. In the instant case, however, the word does not seem disproportionate to the indignation knowingly aroused by Mr Haider. As to the polemical tone of the article, which the Court should not be taken to approve, it must be remembered that Article 10 (art. 10) protects not only the substance of the ideas and information expressed but also the form in which they are conveyed”

(34)

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Dabrowski v. Poland 19/12 2006

“As regards the reasons given by the domestic courts, the Court considers they failed to have regard to the fact that the applicant, as a journalist, had a duty to impart information and ideas on political questions and on other matters of public interest and in so doing to have possible recourse to a degree of exaggeration. The Court next notes that neither the first-instance nor the appellate courts took into account the fact that Mr Lubaczewski, being a politician, should have shown a greater degree of tolerance in the face of criticism. In sum, the Court is of the opinion that the reasons adduced by the domestic courts cannot be regarded as relevant and sufficient to justify the interference at issue.”

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Pedersen and Baadsgaard v. Denmark 17/12 2004

“The applicants’ interview with the taxi driver was filmed on 4 April 1991. The applicants were at that time aware that the taxi driver, at the request of X’s new counsel, had been interviewed by the police on 11 March 1991 and that during that interview she had maintained that she had told the police already in 1981 about having seen X shortly after noon on 12 December 1981. Despite the fact that this witness appeared over nine years after the events took place, the applicants did not check whether there was an objective basis for her timing of events. This could easily have been done, as shown by the check carried out by the police on 11 March 1991, which revealed that the funeral of the taxi driver’s grandmother had taken place, not at 1 p.m., but at 2 p.m. on 12 December 1981. This fact was indeed important, not only in relation to the murder case, in which the crucial time was between 11.30 a.m. and 1 p.m., but also as regards the reliability of the taxi driver who, calculating backwards from the time when the funeral took place, claimed to be completely accurate in her observations of the whereabouts of X.

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Fressoz and Roire v. France 1999

“Admittedly, people exercising freedom of _expression, including journalists, undertake “duties and responsibilities” the scope of which depends on their situation and the technical means they use…

While recognising the vital role played by the press in a democratic society, the Court stresses that journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection. “

(52)

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Fressoz and Roire v. France 1999

“…the information about Mr Calvet’s annual income was lawful and its disclosure permitted, the applicants’ conviction merely for having published the documents in which that information was contained, namely the tax assessments, cannot be justified under Article 10. In essence, that Article leaves it for journalists to decide whether or not it is necessary to reproduce such documents to ensure credibility. It protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism…”

(54)

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Radio Twist v. Slovakia 2006

”The Court observes that the applicant company was sanctioned mainly for the mere fact of having broadcast information which someone else had obtained illegally. The Court is however not convinced that the mere fact that the recording had been obtained by a third person contrary to law can deprive the applicant company which broadcast it of the protection of Article 10 of the Convention”

(62)

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Tonsbergs Blad and Haukom v. Norway 2007

”The Court observes in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism. (…) Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations”

(89)

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Roemen and Schmit v. Luxembourg25/02 2003

“In the Court’s opinion, there is a fundamental difference between this case and Goodwin. In the latter case, an order for discovery was served on the journalist requiring him to reveal the identity of his informant, whereas in the instant case searches were carried out at the first applicant’s home and workplace. The Court considers that, even if unproductive, a search conducted with a view to uncover a journalist’s source is a more drastic measure than an order to divulge the source’s identity. This is because investigators who raid a journalist’s workplace unannounced and armed with search warrants have very wide investigative powers, as, by definition, they have access to all the documentation held by the journalist. The Court reiterates that “limitations on the confidentiality of journalistic sources call for the most careful scrutiny by the Court””

(57)

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ICCPR – Case Law

• Robert W. Gauthier v. Canada 1999

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Robert W. Gauthier v. Canada 1999

“This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion." General comment No. 25, paragraph 25, adopted by the Committee on 12 July 1996. Read together with article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant.”

(13.4)

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Robert W. Gauthier v. Canada 1999

“…the Committee agrees that the protection of Parliamentary procedure can be seen as a legitimate goal of public order and an accreditation system can thus be a justified means of achieving this goal. However, since the accreditation system operates as a restriction of article 19 rights, its operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee does not accept that this is a matter exclusively for the State to determine. The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organization to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights within the meaning of article 19, paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the safety of its members. The denial of access to the author to the press facilities of Parliament for not being a member of the Canadian Press Gallery Association constitutes therefore a violation of article 19 (2) of the Covenant.”

(13.6)

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Article 9 - ACHR

1 Every individual shall have the right to receive information.

2. Every individual shall have the right to express and disseminate his opinions within the law.

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ACHR – Case Law, examples including key quotes

• Sir Dawda K Jawara v. The Gambia 2000• Media Rights Agenda and Others v. Nigeria 1998

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Sir Dawda K Jawara v. Gambia 2000

“The government did not provide any defence to the allegations of arrests, detentions, expulsions and intimidation of journalists, made by the complainant. The intimidation and arrest or detention of journalists for articles published and questions asked deprives not only the journalists of their rights to freely express and disseminate their opinions, but also the public, of the right to information. This action is clearly a breach of the provisions of Article 9 of the Charter. “

(65)

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Media Rights Agenda and Others v. Nigeria, 2000

“According to Article 9.2 of the Charter, dissemination of opinions may be restricted by law. This does not mean that national law can set aside the right to express and disseminate one's opinions; this would make the protection of the right to express one's opinions ineffective. To allow national law to have precedent over the international law of the Charter would defeat the purpose of the rights and freedoms enshrined in the Charter. International human rights standards must always prevail over contradictory national law. Any limitation on the rights of the Charter must be in conformity with the provisions of the Charter.”

(66)

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Media Rights Agenda and Others v. Nigeria, 1998

“In contrast to other international human rights instruments, the African Charter does not contain a derogation clause. Therefore limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances.”

(67)

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Media Rights Agenda and Others v. Nigeria, 1998

“The only person whose reputation was perhaps tarnished by the article was the head of state. However, in the lack of evidence to the contrary, it should be assumed that criticism of the government does not constitute an attack on the personal reputation of the head of state. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise public debate may be stifled altogether.”

(74)

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Media Rights Agenda and Others v. Nigeria, 1998

“If the government thought that this particular article represented merely an insult towards it or the head of state, a libel action would have been more appropriate than the seizure of the whole edition of the magazine before publication. The seizure of the TELL therefore amounts to a violation of Article 9.2.”

(75)