Comment on the Standard Rules of Accreditation of the Mass Media Journalists
This Comment appraises the STANDARD RULES OF ACCREDITATION OF THE MASS MEDIA JOURNALISTS supported by the Russian Union of Journalists.
It is interesting to note that the issue of accreditation has recently come before the English High Court. However, it declined to hear the case, saying that it lacked jurisdiction. The matter will now be heard in France
Tom Rubython will take his gripe with the FIA to the Paris courts in a new action to overturn the authority's decision to deny him F1 media accreditation.The renowned and experienced grand prix journalist, whose past pursuits include F1 Magazine and Eurobusiness, had his complaint rejected by the London High Court last week after they denied any jurisdiction within the UK.
(see http://www.homeoff1.com/news.asp?id=539)
It has also been reported that the issue of accreditation rules has been considered in the Russian Supreme Court:
Journalists' Rights Restricted In Saratov Oblast, Marii El
The Russian Supreme Court confirmed that the rules for accreditation of
journalists of the Saratov Oblast government correspond to Russian
legislation, "Kommersant" reported on 5 August. Among the rules'
requirements are an obligation for reporters to list their pseudonyms in
applying for accreditation, and a provision according to which a
correspondent is deprived of accreditation for not reporting on the
government's work for three months. According to the rules, if an accredited
journalist is ill, the journalist's employer must present a document proving
that the journalist is unable to get to the government in order to obtain
accreditation for another reporter.
The rules were approved on 22 March by resolution of Saratov Oblast Governor Dmitrii Ayatskov and were then opposed by oblast prosecutor Anatolii Bondar in the oblast court. On 27 April the court ruled in favor of the prosecutor's challenge and declared the protested provisions invalid. The government appealed to the Russian Supreme Court, which ruled that "the adoption of the rules was not only legal but even necessary." The court noted that the demand for reporters to list their pseudonyms "does not restrict the journalists' right to a pseudonym provided by Article 47 of the Russian law on mass media."
Meanwhile, Marii El journalist Olga Shingareeva appealed to the republic's prosecutors' office to protest the statute on journalist accreditation at the Marii El State Assembly adopted by the legislature in June, "NTA Privolzhe" reported on 2 August. Under the statute, only state media reporters are permitted to be parliamentary correspondents. Reporters also can be deprived of accreditation if they do not report about the activity of the parliament for six months. The Glasnost Defense Foundation held an independent legal review of the document that confirmed violating journalists' rights [emphasis added]
(see h<ttp://www.rferl.org/bd/tb/reports/weekly/2002/08/0-0>90802.html)
Before commenting on the specific RUJ-supported rules, the relevant, internationally accepted background concerning accreditation will be briefly described.
BACKGROUND
Legal framework
There are three main international legal sources.
First, is the 1999 view of the ICCPR’s Human Rights Committee in the case of Gauthier v Canada.
(see http://www.bayefsky.com/html/159_canada063.php)
A useful summary has been provided by Article 19:
The UN Human Rights Committee considered the complaint of a Canadian journalist who had been refused a permanent pass to the Canadian Parliamentary Press Gallery. Without the pass, he was unable to report fully on Canadian parliamentary affairs. While the Committee recognised that, in some cases, States may be entitled to regulate access to the parliamentary press gallery, any limitations imposed have to be compatible with the provisions of the Covenant. In particular, the Human Rights Committee made it clear that the operation and application of any accreditation scheme “must be shown as necessary and proportionate to the goal in question and not arbitrary.”
This was not exclusively a matter for the State Party to determine, and the Committee set some clear parameters within which any accreditation scheme should operate:
1. accreditation schemes should be compatible with the provisions of the Covenant, and should not illegitimately restrict the enjoyment of other rights;
2. accreditation schemes should set out criteria which are specific, fair and reasonable; and
3. the application of accreditation schemes should be transparent
In addition, the Committee emphasised that under article 2(3) of the ICCPR, States Parties are under an obligation to ensure that everyone whose rights have been breached should have an effective remedy and that any person who claims a remedy should have this claim determined by the competent authorities. Accordingly, the State Party is under an obligation to provide a procedure for independent review of any refusal of accreditation.
(http://www.article19.org/docimages/1231.htm#IIIi)
Second, at the regional level, the Committee of Ministers of the Council of Europe adopted a Recommendation in 1996, No. R (96) 4, ON THE PROTECTION OF JOURNALISTS IN SITUATIONS OF CONFLICT AND TENSION. Principle 11 deals with “accreditation systems”.
Principle 11 : Use of accreditation systems
Systems for the accreditation of journalists should be introduced only to the extent necessary in particular situations. When accreditation systems are in place, accreditation should normally be granted. Member states shall ensure that:
a. accreditation operates to facilitate the exercise of journalism in situations of conflict and tension;
b. the exercise of journalism and journalistic freedoms is not made dependent on accreditation;
c. accreditation is not used for the purpose of restricting the journalist's liberty of movement or access to information; to the extent that refusal of accreditation may have the effect of restricting these rights, such restrictions must be strictly in accordance with the conditions set out in Principle 7 above;
d. the granting of accreditation is not made dependent on concessions on the part of journalists which would limit their rights and freedoms to a greater extent than is provided for in Principle 7 above;
e. any refusal of accreditation having the effect of restricting a journalist's liberty of movement or access to information is reasoned.
(http://cm.coe.int/ta/rec/1996/96r4.html)
Third, there is Principle of the 1994 Resolution No. 2 on Journalistic Freedoms and Human Rights of the European Ministerial Conference on Mass Media Policy.
Principle 3
The following enables journalism to contribute to the maintenance and development of genuine democracy:
a) unrestricted access to the journalistic profession;
b) genuine editorial independence vis-à-vis political power and pressures exerted by private interest groups or by public authorities;
c) access to information held by public authorities, granted on an equitable and impartial basis, in the pursuit of an open information policy
Commenting for Article 19 on this, Dirk Voorhoof writes that
it is declared that as a condition for journalists to contribute to the maintenance and development of a genuine democracy "unrestricted access to the journalistic profession" is to be guaranteed. It is generally understood that the right to freedom of expression implies free access to the journalistic profession, i.e. the absence of the requirement of an official admission by State organs or administrations. Furthermore, the exercise of the profession itself implies that journalists should not be dependent on the granting of all kinds of accreditations, except in some particular cases of events with restricted access.
Civil Society perspective
From the perspective of civil society, Article 19 has elaborated several principles regarding accreditation:
(1) Eligibility
There should not be a provision that only officially registered journalists may be accredited; provision should be made for accrediting non-affiliated journalists; accreditation should not be limited only to those journalists who provide ‘regular coverage’
(2) Quotas
Some flexibility should be allowed in relation to the rigid restriction on the maximum number of journalists that may be accredited from any one media outlet
(3) Period of accreditation
Accreditation should be granted permanently rather than for a single Duma period; the period of accreditation should not be left to the discretion of the Press Service; the discretion of the Head of the Regional Administration to grant accreditation and to determine the length of accreditation should be narrowly circumscribed and state precise criteria;
(4) Criteria for accreditation
Applicants should not be required to submit the chartered goals of the medium or copies of the latest issues;
(5) Accreditation information
Applicants should be required to submit only those details which are necessary to process their applications;
(6) Suspension; withdrawal; cancellation
Statute should clearly state the criteria by which accreditation may be withheld or cancelled; the latter should only be available as a last resort; accreditation should not be withheld, cancelled or suspended if a journalist has become a defendant in a defamation suit, or has been convicted of defamation or spreading false news; accreditation should not automatically be cancelled if the sponsoring medium ceases to exist or has been suspended
(7) Appeals process/procedure
The Statute should include an appeals procedure for journalists who have been refused accreditation or whose accreditation has been cancelled.
(see http://www.article19.org/docimages/1231.htm)
In summary then,
any accreditation scheme invariably has the effect of putting some limits on access
accreditation should be an “automatic” and “facilitative” procedure”; at the very least, accreditation should “normally” be provided; and be for identification purposes only
refusal to accredit means that a journalists is unable to report fully, restricting his or her right to freedom of expression
although it might be possible to follow affairs through official press releases, or even through live radio or TV broadcasts, this is no substitute for personal access
some accreditation schemes place a considerable administrative burden both upon journalists and on the editorial boards of mass media, particularly when accreditation is for short periods, requiring journalists regularly to apply for renewal
as an interference with the right to freedom of expression, any accreditation scheme must pass the three-part test (pursuit of legitimate aim; in accordance with the law; be necessary in a democratic society)
whilst a system of accreditation may be necessary to restrict access for security reasons or space constraints (i.e., the number of accredited journalists may be limited only when there are real and demonstrable problems in terms of accommodating the number of journalists) and to control public access in order to enable the media to do their job, it should not be susceptible to political interference
The RUJ’s Model/Standard Rules: Specific topics/issues
Definition/aim/basis of accreditation (Section 1)
Paragraph 1 provides that “Accreditation is a validation by the editorial office of a mass media outlet of the powers of the representative of the mass media outlet at the Accrediting Organization (hereafter “AO”) and the AO’s “acceptance” thereof “in the order determined by law and the present Rules”. The aim of accreditation is to “ensure the openness of the AO’s work”; improve its interaction with the mass media; and to “create the necessary conditions for the journalists’ professional activity.” Accreditation is carried out in accordance with 1991 Law and these Rules. Finally, the Rules are based on “agreed upon and mutually accepted provisions” as between the mass media outlets’ editorial offices and the AOs.
Points of concern
For example, does the way in which the definition and aim is expressed correspond with the international understanding of what accreditation is? In other words, how does Paragraph 1 correspond to the view that accreditation is (a) about identification and that (b) the process of accreditation is a matter for professional organisations at best and, at worst, an independent body established for that purpose.
Also, Paragraph 1 refers to the 27th December Law 1991. But, what about the provisions of the new Draft Law, in particular Sections 10 and 59(3)?*** Finally, there is concern that the Rules have been drawn up in concert with the Aos.
***A19’s recent analysis of the Draft Mass Media Law thinks that these should be deleted and/or an independent accrediting body be established.
Accreditation
Articles 10 and 59(3) of the draft Media Law address the accreditation of national and foreign journalists. Article 10 provides that the owner, publisher, broadcaster or editorial office may apply to various government, political and religious bodies to accredit their journalists with these organisations. The refusal to grant accreditation may be appealed to a court of law. State bodies that have accredited journalists are required to supply these journalists with reports “and to notify these journalists of any meetings or conferences, unless the decision has been made to hold meetings in camera.”
Article 10(3) states that a journalist may be deprived of his or her accreditation if he or she, or the editorial office, violates an organisation’s accreditation rules or disseminates information that is untrue or which denigrates “the honour and dignity of the organisation.”
Article 59 of the draft Law states that the accreditation of foreign journalists will be conducted by the Minister of Foreign Affairs according to the provisions of Article 10.
As discussed above (Section 2.4), it is well established that bodies with regulatory or administrative powers over the media should be independent of Additionally, the fact that accreditation may be lost if the “honour and dignity of the organisation” has been denigrated is a clear violation of freedom of expression for a number of reasons. First, it allows the accrediting body full discretion to decide whether its “honour” and “dignity” have been adversely affected. Such wide discretion may be abused. Injury to reputation is an issue that should be addressed by generally applicable defamation laws. Second, laws aimed at the protection of reputation cannot be justified if their purpose or effect is either to protect the reputation of the State, or to prevent legitimate criticism of officials or the exposure of official wrongdoing. Third, while in some cases it may be appropriate to take measures when a journalist violates the law, international human rights law requires that such measures be proportionate to the harm done and the goal pursued. Cancellation of accreditation constitutes an extreme measure, which seriously restricts a journalist’s right to freedom of expression, and should be used only as a last resort.
| Recommendations: Articles 10 and 59(3) of the draft Media Law should be deleted. If the government decides to retain a system for accrediting journalists, these provisions should be amended to provide for an independent body to accredit journalists. Article 10(3) should be deleted. |
Right to accreditation (Section 2)
Paragraph 2 states that “the right to authorise a journalist to represent mass media outlet” at an AO “belongs to the editorial office of any registered mass media outlet as well as any foreign mass media outlet accredited by the RF Ministry of Foreign Affairs”.
Points of concern
The Rule seems to make accreditation dependent on employment with “registered” mass media outlet (domestic or foreign), even though “lack of accreditation” does “not involve any infringement of journalists rights under the MM law.” In any event, the notion of “registration” for media is problematic and - doubly so - if accreditation is dependent on employment with officially registered media. This could be breach of exercise of right to freedom of expression. Further, the rule appears to restrict the rights of freelancers: “non-affiliation with a mass-media outlet should not foreclose accreditation.” The restriction of the Rules, insofar as the journalist has to have some employment with a mass medium outlet may restrict the ability of freelancers to report on the activities of the AO. This is an unnecessary restriction of the right to freedom of expression. Further, the issue of non-mass media outlets is concerning.
Types of accreditation (Section 3)
The Rule regarding “types of accreditation” provides that it may be permanent or temporary. Permanent is equivalent to a grant of accreditation “with no stated date of expiration”; temporary accreditation is granted for fulfilment of “a specific editorial task” or for replacement of permanently accredited journalist (if ill/away/leave of absence).
Points of concern
Although it is welcome that there is the possibility of “permanent” accreditation, it is concerning that temporary accreditation is for the “term necessary for fulfilment of an editorial task”. This is overly vague and potentially subject to abuse. It seems to potentially put a lot of power into the hands of editors. Finally, there is also concern about the bureaucratic implication of actually obtaining temporary accreditation, and the problem of how it can be obtained quickly, in the case of necessity.
Quotas (Section 5)
The Rules legitimise the notion of quotas. It is, however, accepted that the Rules also state that in establishing the quotas “the principles of openness and fairness” are observed. The basis of the quota system is that “the number of the representatives of one editorial office is determined taking into account the real possibilities of seating them.” Allocation is determined using the following criteria: form of the media outlet; circulation; specialisation (“declared theme”); and area of distribution. The list of the outlets with the number of journalists accredited to them shall be contained in an Appendix to the Rules. The quotas established for radio/TV/video and documentary programs include auxiliary and technical people.
Points of concern
Why should the RUJ legitimise the concept of quotas? Any quota system is capable of abuse. The scheme is complex unwieldy and not very transparent. The inclusion of technical/auxiliary people could restrict the number of journalists being accredited. The formula for managing the quotas is artificial; not all media outlet accredited journalists may turn up to any given event, so that a larger number from one (or, indeed, freelancers) might have been able to take up unoccupied space. There needs to be more flexibility in relation to the restriction on any given media outlet’s allocation which the application of the formula would grant.
Registration Details/Accreditation Information; Procedure for Accreditation (Sections 4; 5; 9; and 10.3)
(a) The application for accreditation goes to the Press Service of the Accrediting Organisation, on the media outlet’s editorial office’s official notepaper, signed by the editor-in-chief and certified by the seal. Each application requires a copy of the registration certificate of the outlet and 2 photos of each journalist. Information for the application includes: details of the media outlet; names(s) of the journalist; and type of accreditation.
Points of concern
Accreditation should be a technical procedure, with only necessary details being required. Too much information is required regarding the media outlet, but, on the other hand, it is good that no current issues and/or charted goals of the media need be supplied. Application made by editor-in-chief ignores the “reality that journalists may change employment or may be assigned to new post”. Submitting new application for each change in personnel imposes undue administrative burden. On the other hand, it is good that minimum details regarding the journalist are required (ie no home phone no etc).
(b) The application is received by the Press Office of the AO and its Head makes the decision within 7 days; if it is positive, an “accreditation certificate” is issued which “ensures unhindered pass to the building” of the AO. Grounds for denial of accreditation include: if the application is from “specialised mass media outlets”; if the media outlet has exceeded its quota [sic]; if the application form contains invalid information.
The denial notice must be sent within 7 days containing “reason of the denial in the permanent accreditation”; name of official making the decision; date; and “order of appealing”.
The process of appeal : (1) the journalist/editorial office may appeal to the “governing body of the AO”; the “overseeing body” of the AO’s governing body; and to the Prosecutor’s Office. (2) Denial may be appealed “according the civil and civil procedural legislation”.
Points of concern
Denial for the reason of lack of space is a non-reason. However, it is good that the grounds for denial do not include defamation/false news suits/convictions and the relevant Rules are good on the detail prescribed in the denial letter (including reasons; appeals process).On the other hand, is restriction vis-à-vis specialised media outlets warranted? Also, refusal being tied to the quota point is problematic because the notion of quotas is problematic (see above). Finally, The appeal process is both onerous and too vaguely specified.
Withdrawal/Suspension/Cancellation of accreditation (Section 10.1)
The Rules prescribe that accreditation may be withdrawn when the journalist is “dismissed” from the editorial office; when the media outlet terminates its activity; on the dissemination of “untrue information inflicting damage on the AO or infringing its workers’ rights/legitimate interests which is “confirmed by the court decision that came into force”. The decision to withdraw accreditation is made by the Head of the Press Office of the AO, albeit that the decision has to be “substantiated”; in writing and “contain references to current legislation on the Mass Media”. Withdrawal may be appealed “according to the civil and civil procedural legislation.” Conflict situations may be resolved by the journalists/editorial office appealing to the governing body of the AO and then to the body overseeing the AO’s governing body (and to the Prosecutor’s Office?).
Points of concern
Withdrawing the accreditation automatically if the media outlet ceases to exist may infringe the right to freedom of expression, as the journalist may wish to continue to practice freelance, and/or s/he is “between jobs”. The sub-section making reference to “current legislation on Mass Media”: does this include the new draft law? What about temporary suspension/withholding of accreditation? Withdrawing accreditation is an extreme measure of last resort. The criterion of disseminating “untrue information inflicting damage to the organization or infringing its workers’ rights and unlawful interests” is potentially problematic: is it not the old crime of spreading “erroneous news” in a new incarnation? If so, ”false news” provisions are contrary to international human rights law [see Supreme Court of Zimbabwe, Chavunduka v Minister for Home Affairs].Also, per Derbyshire CC v Times, public authorities can’t sue for defamation. Even if a journalist/media outlet is successfully sued for defamation (and what about public official issue?), withdrawing accreditation would be an extra penalty; disproportionate; and an unwarranted interference in exercise of right to freedom of expression.
Working with accredited journalists; rights and duties of accredited journalists (Sections 6, 7 and 8)
Points of concern
Whilst it may seem useful to list the “main directions of work with accredited journalists” and their rights and duties, the very notion of such listing is questionable. It seems to imply that the practices, rights and duties of journalism are dependent on the journalist being accredited in the manner prescribed in the rules. However, this is counter to the international understanding regarding what the exercise of the right to freedom of expression and information through the practice of journalism entails.
Commenting on Azerbaijan’s mass media law, Dirk Voorhoof for Article 19 writes that
Accreditation or identification cards as a matter of fact may serve legitimate purposes, particularly in helping or facilitating journalists in gaining admittance to limited access events, such as press briefings or court cases. It must be emphasised that these identification cards are not obligatory and are not a prior condition for being active as a journalist. The free exercise of journalism is to be guaranteed, with or without recognition as a professional journalist [emphases added]
However, given the dubious premise that it is legitimate to list the “working directions” and rights and duties of journalists, are there specific rights which are problematic? Are there specific rights which are not included? Is the concept of journalistic duties acceptable? Are there any stated duties which are unacceptable?
Resolution of conflict situations; Appeals (Sections 10.3 and 4)
These sub-sections provide that in the event of conflict situations, the journalist or editorial office may “apply to the governing body of the AO” and to the “governing body” that oversees the AO and to (?) the Procesutor’s Office. And, that “the denial in accreditation, the withdrawal of accreditation as well as the violation of the accredited journalist’s rights may be appealed according the civil and civil procedural legislation.”
Point of concern
The crucial concern here is whether both in conflict situations and as regards appeals against denial etc of accreditation decisions, the relevant appeal body is an independent and impartial tribunal/body. Further, the potential recourse to the Prosecutor’s office seems unnecessarily unwieldy, potentially time-consuming and expensive.