Index

The Enabling Environment For Free and Independent Media
By Monroe E. Price & Peter Krug

Chapter 4: The Legal Environment for News Media Activity

 4.1 Overview

Here the focus shifts from questions of structure to the identification of those elements of a legal system (its laws and practices) that have an impact on the content of the media product – the information and opinions – that is disseminated to the public. This subject therefore goes to the heart of concerns about the core elements of a legal setting that either impede or advance the establishment of an enabling environment supportive of independent media.

This discussion will be “structure neutral.” In other words, the points made will be applicable regardless of the media structure in a given society. For the most part, the focus is on what might be called traditional media: print, radio, and television. But these questions are now coming into focus with respect to the Internet. As a mode of communication, journalistic use of the Internet requires exactly the same level of attention to freedom of expression as traditional modes.

Four aspects of the legal environment in which news media operate and where law is a factor either promoting or impeding news media independence and effectiveness warrant attention: (1) newsgathering; (2) content-based regulation; (3) content-neutral regulation that has the potential to influence content indirectly; and (4) protection of journalists in their professional activity, including protection against physical attacks.

Newsgathering, a key function of the press in a democratic society, is an essential condition of news media effectiveness. Laws concerning newsgathering include those that recognize and guarantee public access to government-controlled information and institutions, with limited exceptions for national security, protection of personal privacy, crime prevention and other goals. Laws concerning the licensing and accreditation of journalists also relate to this question of effectiveness.

Another set of laws deals with content-based regulation, which we view as intervention by the public authorities, either through “legal” means (i.e., on the basis of legislative acts or judicially-created norms) or through “extra-legal” means (governmental acts that are not grounded in legislative or judicial norms directly targeted at content). These laws, which seek to advance a range of state, social, and individual interests, operate through forms of prior review censorship, conditions of market entry, and regimes of subsequent punishment for perceived abuses of journalistic freedoms. The scope of such content-related concerns and their methods of enforcement represent a useful yardstick by which to measure whether an enabling environment exists.

The third category comprises laws that are not targeted directly at editorial content (i.e., are content-neutral on their face), but which have an incidental impact and therefore create the risk of external manipulation in their application, or else laws that are intended to shield media from external influence.

Finally, there is an examination of issues related to protection of journalists in their professional activity. There are at least two components of this category. The first relates to the matter of journalists’ job security, and focuses on “internal press freedom” or the relationship between journalists and media owners. The second concerns the matter of physical security: journalists often must endure the threat or the reality of physical attacks upon them from either public or private persons, and the extent to which the legal system protects them is also a key element in an enabling environment.

Several points apply to the entire discussion in this Chapter. First, an important tool for analyzing content regulation by legal means is the recognition that content regulation is exercised by both laws of general applicability (those laws that apply to all persons within the jurisdiction of the legal systems and do not explicitly target the media) and media-specific laws. Among other things, this perspective might be significant in determinations regarding the constitutionality of particular governmental acts: it might be much more difficult to challenge the constitutionality (regarding press freedoms) of a generally applicable law on its face, than it might a media-specific law. This distinction is highlighted in the material below. Laws of general applicability represent those points at which news media activities intersect with the core legal system. Two categories emerge among media-specific laws: (1) “Mass Media Laws” (MMLs), or “Laws on the Press” (Press Laws) which are the foundation laws of media regulation in many countries; and (2) legislative acts relating to more specific, narrow topics, such as regulation of broadcasting or journalists’ rights and duties.

Second, it is important to note that while this discussion focuses on state acts, the private sector also plays a role in the legal environment for news media activity. For example, an important question for newsgathering is the amount of access to information about individual entities and individuals. As to direct influence on content, private entities and natural persons have the right in all legal systems to initiate legal action for perceived violations of their rights by the media. As to indirect influences on control, private persons and concentrations of private power, as well as the state, have a substantial say, particularly where the media are privately controlled.

Finally, the discussion of “legal norms” is expansive. It encompasses not only legislative acts, but normative administrative acts as well, along with consideration of potentially applicable constitutional and international norms.

4.2 Newsgathering

One can conceive of a system in which journalists are “independent” in that they can print what they wish, but are severely hampered because they have constricted access to information. Of course, all journalists are hampered. They have deadlines that prevent as much investigation as they desire. They have budgetary constraints. They have editors who limit their travel or the direction of their journalistic inquiry.

But still, it is possible to examine the nature of a state’s enabling environment specifically in terms of the capacity of the journalist to gather information and be effective. Information gathering by journalists is a vital component of freedom of information. Without access to information, journalists are engaged primarily in the presentation of opinions. And while openness in the statement of opinions is an important element of democratic society, it is not sufficient for its development and maintenance. The possibility for an informed citizenry depends on the ability of journalists to have access to sources. Without this kind of journalistic effectiveness, a society can have free and independent media, but their utility toward advancement of democratic institution-building might be severely limited. In addition, a state’s determination to license the practice of journalism will also have implications for the news media’s role in a democratic society.

There are obvious elements of a state’s enabling environment in access to information. Some states use the power to accredit journalists restrictively, ensuring that few have access, for example, to the press briefings of the government or to the processes of the legislature. Many countries close important public institutions, such as prisons, military facilities, and, increasingly, even in the most democratic societies certain judicial trials to the public and to the press. These restrictions can be justified with concerns of national security, privacy, or the integrity of the policy-making process. Whatever the justification, the closest examination of these restrictions is necessary.

The enabling environment also includes access to the world’s databases. A state can limit this form of access by imposing a tariff structure, constraining Internet service providers, or creating the fear that there is state monitoring of what database a journalist seeks to use. The extent to which public libraries are maintained and updated is also a mode of affecting the capacity of a journalist to gather news.

Certainly, the policy of the government toward journalistic access to information, which may be a matter of informal access and informal policy rather than law, is key to the functioning of a press. But one of the most important areas for access to information is a state’s attitude towards its records, its documents, its proceedings, and its institutions. Rules concerning access to documents and institutions are examples of the positive use of law to promote media independence and effectiveness.

4.2.1 Access to Information (Documents)

An essential condition of effective and professional journalism is the ability of journalists to gather information in tangible files, often dusty and hard to find, which are held by or controlled by public authorities. A legal enabling environment will include legal guarantees for the conduct of this gathering activity. Often, such guarantees are found in generally applicable legislation that recognizes the rights of public access to documents. Although these laws often do not expressly cite the rights of journalists, news media representatives of course share the rights of access with the general public.

An environment in which such guarantees are absent will lack an element essential for journalistic effectiveness, particularly in those legal settings where criminal law prohibits disclosure of government documents and imposes sanctions on public custodians who violate this norm.

Access to information generally requires affirmative legal guarantees. A law protecting a journalist against censorship will not be enough. Even the presence of constitutional and/or applicable international norms will not normally be sufficient since there is not sufficient development of an international principle providing such access to journalists. Fundamental norms are vague on this score, and require detailed implementation in the form of legislation that recognizes and supports the access principle and supporting regulations that address the many practical questions that arise in this area. An important articulation of fundamental principles on access is found in the “Johannesburg Principles on National Security, Freedom of Expression, and Access to Information.” This document was adopted in 1995 at a meeting of specialists in international law convened by ARTICLE 19, the International Centre against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand.

What are the elements that should be present for a freedom of information regime to be effective? Several clusters of issues – structural, operational, and enforcement – should be taken into account.

4.2.1.1.1 Presumption of Openness

The fundamental characteristic of freedom of information legislation is an expressly articulated presumption of openness. The presumption of openness is grounded in this principle: an item in the control of the public authorities is public unless it is covered by an exception expressly set forth in a legislative act. The principle therefore places the burden of justification for refusal to disclose on the public custodian.

Most legal systems impose some kind of standard on persons who request access to documents, such as a requirement that they demonstrate that the requested information affects their rights and legal interests, or that it is of a particular level of importance. The effectiveness of freedom of information legislation will be significantly reduced if, instead of a presumption of openness, great burdens are imposed on requesters. The problem with such requirements is that they create an opportunity for arbitrary refusals to disclose, grounded in the custodian’s assessment of the status of the requester or the importance of the document. Regarding the latter, of course, there would be an inclination for a custodian to be more reluctant to disclose documents which might be deemed “important” and therefore perhaps damaging to governmental or corporate interests: a situation which would be counter-productive for the goals of freedom of information.

4.2.1.1.2 Application of Freedom of Information to Public Institutions

Effective freedom of information legislation must apply broadly to public institutions. The broader the scope of public access rights, the more democratic a freedom of information law will be. For example, are legislative bodies covered? If so, a comprehensive right of access to legislative documents would include a right of access to draft legislation and hearings at the legislative committee level, not just at plenary sessions of the legislature. This would give journalists the opportunity to inform the public of crucial determinations made at the committee level, rather than only at the plenary level when the important policy debate might already have been concluded. A broadly based freedom of information law would also include a general right of access to documents in judicial proceedings.

A number of specific issues might arise in regard to documents produced or under the control of particular branches of government. For example, a right of access to legislative documents should be general, and not include specific categorical exclusions based on status of the document, but only on its subject matter. For example, not only the minutes of legislative sessions should be available, but also written reports considered in the legislative proceedings as well, unless they are insulated under a specific subject matter category exception. In addition, minutes of legislative committee meetings, as well as those of the plenary legislative body, should not be shielded from disclosure. Finally, at the heart of democratic governance, an effective freedom of information regime must permit ready access to draft legislation.

4.2.1.1.3 Exceptions to the Right of Access

Exceptions to the right of access must be limited to those that are expressly and narrowly defined in legislation, and are necessary in a democratic society to protect legitimate interests that are consistent with international norms. It is universally recognized that freedom of information access rights is not absolute: that their existence does not automatically mean unlimited and unconditional access to public sector information. Instead, it is accepted that protection of certain countervailing secrecy interests will constitute exceptions to those rights of access.

At the same time, however, any exception to the presumption of openness should satisfy certain requirements. First, it must be prescribed in legislation. This means that the legislature has the exclusive power or competence both to identify the secrecy interests to be protected and to define the particular parameters of the exception. In addition, it means that the exceptions must be set forth in detail, and cannot be presumed simply on the basis of perceived legislative intent or ambiguous language in the law. Thus, the legislative norms must be carefully defined, not open-ended. As to national security, for example, a common legislative practice is to prohibit disclosure of “state secrets.” However, a regime inclined toward democratic principles will permit the use of this exception only when a particular category into which the document in question falls has been identified in advance.

Some sort of measuring stick by which their appropriateness and compatibility with democratic principles can be measured, should govern the selection and application of exceptions. All branches of the government mechanism should observe this standard: the legislative, executive, and judicial branches. A standard applied in a number of systems is that an exception must be “necessary,” an assessment standard with which a reviewing body must determine whether the need for the exception outweighs the presumption of openness, and is limited to protection of the specific secrecy interest.

Thus, in order to satisfy the necessity in a democratic society requirement, a restriction on the right of access must be targeted to counter a serious threat to a legitimate public interest and place no restrictions other than those which are directly related to protection of that interest. For example, if the interest to be protected is national security, a restriction will not be necessary in a democratic society unless its purpose and application is to protect against the use or threat of external or internal force against the country’s territory, institutions, or its representatives. Therefore, a restriction that, for example, insulates the government or its individual members from exposure of illegal acts would not satisfy this standard. In addition, for a restriction to be “legitimate” – in other words essential to democratic governance – it must be grounded in the goal of maintaining democratic institutions and procedures. In this regard, a number of countries explicitly prohibit the designation of certain categories of information as a “state secret.” For example, generally not eligible for status as a state secret is information relating to matters which are deemed of a public nature: disasters which threaten public health and safety; conditions of the natural environment, public health institutions, education, culture, and agriculture; illegal acts by state institutions and public officials; and violations of human rights.

Constitutional and international norms might place constraints on the legislature, in effect placing contours on the notion of what constitutes a legitimate public interest deserving of protection against an open-ended right of access. For example, the International Covenant on Civil and Political Rights, Article 19, dictates that state-parties recognize a right to seek information, and specifies the only grounds upon which exceptions to access can be made.

The European Convention on Human Rights, Article 10.1, requires the contracting states to guarantee the right to freedom of expression, which includes the freedom to “receive” information “without interference by public authority.” The jurisprudence of the European Court of Human Rights does not provide definitive guidance on the contours of Article 10.1 in the freedom of information context. However, Article 10.2 of the Convention requires that restrictions on Article 10.1 rights must be necessary in a democratic society for the advancement of enumerated legitimate aims which include national security, public safety, prevention of crime, protection of health or morals, protection of the reputation or rights of others, prevention of disclosure of information received in confidence, and maintenance of the authority and impartiality of the judiciary. Of particular importance in the context of freedom of information are the requirements that restrictions should be: (1) proportionate to the legitimate aim pursued, and (2) capable of accomplishing that goal, doing so without infringing on the exercise of other rights of free expression.

In regard to these questions, it is possible to identify certain “core” secrecy interests that are generally deemed “necessary in a democratic society.” Exception categories can be said to fall into two general groups: those that seek to advance general or public secrecy interests, and those that protect the interests of particular legal or natural persons. Examples of the former are national security, State Economic or Financial Interests, Law Enforcement, Internal Administration of Government Departments, and Protection of Policy-making Deliberations. Examples of the latter are Personal Privacy and commercial confidentiality.

4.2.1.1.4 Criminal, Civil, and Administrative Liability

Journalists should be insulated from criminal, civil, or administrative responsibility for publication of secret documents or information from those documents, unless they knowingly participated in a scheme to obtain the documents in an illegal fashion and knew that the documents were lawfully protected against disclosure.

Moreover, an effective freedom of information regime will shield a journalist from liability even in circumstances of knowing participation if the public interest in disclosure outweighs the harm threatened or caused by such disclosure. In certain cases, a journalist will obtain documents that are legally protected from disclosure. In such circumstances, a blanket imposition of liability for publication of such documents or information from them would tend to have a chilling effect on the exercise of press freedoms that would be detrimental to the goal of democratic governance.

4.2.1.2 Reasonable Administrative Requirements and Costs – Operational Aspects

Logistical or cost considerations must not impede exercise of the right of access. There should be a deadline for response to requests, a requirement of written statement of reasons for refusal (important for review by a higher administrative body and/or a court), and opportunity for copying, with limitations on costs to be imposed for this service.

4.2.1.3 Effective Means of Enforcement

Articulation of rights of access must be accompanied by effective means of enforcement of those rights. This requirement has several elements: effective remedies; effective, independent review of custodial denials of disclosure; threat of sanctions for willful violation by public officials; and designation of an independent freedom of information “umpire.”

An effective freedom of information regime must have adequate enforcement remedies, including appeal to court or some other review body outside the administrative structure. In this regard, a public access law should require that a written statement informing the requester of the opportunity to file an appeal with the independent reviewing body accompany a denial of access. The nature of the reviewing body’s enforcement authority is also important. A scheme that simply imposes monetary penalties on the custodial body will not be effective; instead, a court or other reviewing body should have the power to order the custodian to do what the requester wanted in the first place: to make the information in question available.

At the same time, legislation should also provide for sanctions against illegal refusals to disclose documents. It advances the purposes of freedom of information if either the right of access legislation or the criminal codes contain provisions that buttress the rights of access found elsewhere by establishing liability for public officials who unlawfully deny requests. In this regard, however, the use of sanctions should be approached with caution, lest it have a counter-productive effect. Should public officials be exposed to liability even in those cases where they might in good faith have believed that they were following the dictates of the law? If so, the danger exists that custodians will tend simply to disregard the freedom of information law as inapplicable or inequitable. This is particularly true where custodians find themselves in a quandary as to particular requests for access, caught between their potential liability for illegal denials and their potential liability for illegal release of protected documents (state or commercial secrets, for example) under other applicable legislation. In an attempt to resolve this, one option would be the inclusion of a legislative provision that public officials are to be held responsible only when they have willfully or knowingly ignored the law’s requirements.

An important component in making freedom of information effective is the designation of an independent official who is empowered to mediate disputes and provide effective interpretations, so that public employees do not find themselves subject to personal liability for decisions they have made in good faith. Such a step would avoid wasteful adversarial disagreements between requesters and custodians over interpretation and application of the law. The law should state that if a public official is able to demonstrate that he or she sought such advice in a particular case, this would serve as evidence that the official had not acted willfully or knowingly and therefore would be free from personal responsibility if a court were later to determine that access was warranted.

4.2.2 Access to Government-Controlled Proceedings and Institutions

In addition to access to documents, an enabling environment requires that news media representatives have reasonable opportunity to observe, and therefore report to the public on, the workings of governmental agencies, including legislative bodies, the executive branch, and the courts.

However, because of logistical concerns, access to these governmental activities will probably differ from rights associated with requests for documents. Journalists in their pursuits perhaps must enjoy greater rights than those of the general public because, for example, the number of persons attending a meeting or judicial proceeding must be limited. In such circumstances, greater rights for journalists are justified under the notion that by means of their newsgathering and reporting they function as the eyes and ears of the public. These considerations, meanwhile, raise questions about the authorities’ scope of discretion to decide which journalists are eligible to gain such access.

4.2.2.1 Presumption of Openness

As in the case of access to documents, the most satisfactory norms from the point of view of journalistic effectiveness are those which establish a presumption of openness, subject to clearly defined, narrowly tailored exceptions grounded in legitimate public and private interests whose protection is necessary in a democratic society.

4.2.2.2 Self-Governance of the Journalistic Profession

Effective self-governance within the journalistic profession can play an important role in advancing development of an enabling environment. The establishment of voluntary ethical codes of professional conduct and systems for professional self-governance can be important steps in promoting journalists’ public responsibility and thereby advancing the goal of journalistic independence.1

An impetus for state legal regulation and other forms of interference with media content is often found in a public perception that journalists must be held accountable for dissemination of false, unsubstantiated, or unbalanced reporting. Otherwise, without some constraints on journalists, the irresponsible acts of a few members of the profession can perhaps undermine the work of honest public servants and legitimate institutions, threatening the development of fragile democratic governance. By making a visible effort to establish systems for effective self-policing of irresponsibility within the profession, journalists can pose a credible alternative to forms of content control that threaten journalistic independence and the right of the public to receive information.

Journalists’ professional organizations in many countries, as well as the International Federation of Journalists, have adopted voluntary codes of conduct that articulate accepted professional ethical standards.2 Among the topics commonly addressed in such codes are: the duty to verify information; limitations on reporting information about individual’s private lives; respect for the honor and dignity of individuals; and observance of the principle of presumption of innocence. The latter principle, for example, establishes self-imposed limits on the reporting of facts and commentary regarding criminal proceedings until announcement of the court’s judgment.

As to procedures of self-regulation, formal systems for hearing public complaints against alleged violations of ethical standards operate in a number of countries. Sanctions imposed on journalists found guilty of breaches of their professional duties include issuance of public statements of censure and orders that the journalists publish retractions of their offending statements.

In some cases, professional bodies exercise quasi-judicial power, issuing decisions that are binding on the complainant and the journalist who is the subject of the complaint. For example, the Lithuanian Ethics Commission of Journalists and Publishers exercises formal power and acts on the basis of delegated legislative authority. The Commission is comprised of information media representatives elected by journalists’ organizations, and its activity and the Code of Ethics of Journalists and Publishers are incorporated directly into the Lithuanian Law on Public Information (Arts. 23-25). The formal complaint mechanism establishes a method for the presentation and resolution of complaints presented on behalf of individuals by the Inspector of Journalist Ethics, a specialized ombudsperson for complaints against the mass media. This effort to have complaints evaluated by professional peer review closely resembles systems of voluntary information media self-regulation in a number of other countries. Either party to a dispute before the Ethics Commission may appeal its decision to a court.

Journalists’ professional organizations generally play a key role in the development of professional ethics and procedures of self-governance; therefore, support for their efforts can be an important component in creating and sustaining an enabling environment. In order to fulfill this function, such organizations must be able to operate independently, free of coercion or manipulation by public officials or third parties. Thus, in a broader sense, an effective enabling environment will be one in which the autonomous activity of professional organizations is secured by legal guarantees, and in which practicing journalists, scholars, and legal practitioners work together to buttress the social legitimacy of journalistic practice. Conversely, legal prohibitions against the establishment of professional organizations or trade unions, or other forms of pressure or control that impede their independent activity, will be detrimental to the creation or maintenance of an enabling environment for free and independent media.

Systems of professional self-regulation will never obliterate the possibility that individuals will abuse journalistic freedoms. However, in a legal setting providing an enabling environment for free and independent media, such systems should be in the forefront of efforts to promote the practice of journalistic responsibility. The existence of an opportunity to pursue such efforts successfully can help reduce the occurrence of acts of unethical journalistic practice and therefore the circumstances in which intervention by the legal system in the form of content regulation is deemed necessary to address the concerns of aggrieved parties.

4.2.2.3 Journalists’ Right of Access to Legislative Proceedings

Few exceptions should exist to journalists’ right of access to legislative proceedings. Legislative activity – the creation and amendment of legal norms by the representatives of the people – lies at the heart of democratic governance. Therefore, an effective enabling environment should be one in which the public is fully informed of the legislature’s activity on an on-going basis. Some constitutions establish a principle of openness of legislative proceedings. However, this principle is sometimes set forth as a norm of legislative process, not as a right of access guaranteed to the mass information media or the public as a whole. As a result, the constitutional provisions also provide the legislatures with unlimited discretion to close particular sessions – not a situation conducive to democratic governance. Such a presumptive right of access should also apply to proceedings of legislative committees, as well as the legislature when it meets in plenary session.

4.2.2.4. Live Broadcasting of Legislative Sessions

While it is perhaps not essential to an enabling environment, governments should strongly consider permitting live broadcasting of legislative sessions. Some countries have addressed the questions related to television or radio broadcasting of legislative activities. In some of these countries, state broadcasters are required by legislation to make a certain amount of airtime available to the legislature. In others (Georgia, for example), the legislature decides whether to permit live broadcasting of particular sessions.

4.2.2.5. Presumptive Right of Access on Executive Proceedings

A presumptive right of access should also apply to executive branch proceedings and institutions under the control of the executive branch. This includes administrative agencies, where important policy decisions are often made (e.g., a session of the broadcasting licensing authority).

4.2.2.6 Presumptive Right of Access on Judicial Proceedings

A presumptive right of access should also apply to judicial proceedings. This area strikes at the core of some very sensitive currents of public concern, often creating direct conflicts of countervailing constitutional and legal rights. For example, impetus to close judicial proceedings can arise from legitimate concerns about the protection of the rights of criminal defendants or other participants in the criminal process. For example, particularly in those legal systems where lay persons act as finders of fact (either on all-lay person juries or mixed courts with professional judges), there is the concern that pre-trial publicity might overwhelm the presumption of innocence and influence the outcome. As to other participants in the judicial process, it is widely held that closure might be necessary to secure the physical safety or personal dignity of other participants, such as witnesses. For example, closure might be required during the testimony of a victim of crime, so as to protect the confidentiality of that person’s identity or her dignity while testifying as to sensitive matters.

In addition, it might be that a particular category of defendants, such as minors, might require closed proceedings in furtherance of certain public interests in rehabilitation. On the other hand, closed criminal trials can result in abuse of defendants’ rights, allowing the authorities to act without regard to public scrutiny.

An enabling environment will be one in which an effort is made to balance these sensitive concerns, rather than failing to take the public interest in openness into account. As a result, this area demonstrates the importance of the question as to whether a constitutional theory of the freedom of the press is a significant component of an enabling environment. In this regard, a legal system might have normative provisions that require that judicial proceedings shall be open to the public. Despite this widespread articulation of a principle of “openness,” however, the existence of numerous exceptions in many states demonstrates that countervailing considerations associated with judicial process frequently take priority over the principle.

In sum, there should be some mechanism of circumscribing unlimited latitude extended to courts to close judicial proceedings, and to legislatures to authorize such closure. This mechanism should be grounded in a notion that openness advances the rights of the public under constitutional guarantees of freedom of expression to receive information through the mass media.

4.2.3.1 Recognition of the Societal Value of Protecting Confidential Sources

An enabling environment recognizes the societal value of journalists’ protection of confidential sources and information obtained from those sources. Laws and professional codes of conduct in many legal systems reflect the conclusion that protection of journalists’ sources is a fundamental condition of effective newsgathering in democratic society. Without confidence that journalists will not be compelled to disclose their identity, sources of information may be deterred from providing information on matters of public interest, thereby diminishing the effectiveness of the news media’s watchdog role. This situation can take on a constitutional dimension: that of the public’s right to receive information from the news media.

4.2.3.2 Exceptions

Exceptions to journalists’ protection of confidential sources, if permitted at all, should be prescribed in law, narrowly defined, and available only for advancement of interests necessary in a democratic society. Under optimal conditions for an enabling environment, a journalist’s protection of confidential sources is absolute, with disclosure not justified in any circumstances. However, many legal systems do establish an exception to a legal or ethical duty not to disclose when certain public authorities have ordered disclosure. In such circumstances, an enabling environment will require that only a court, in a decision grounded in legislative norms, issue such an order.

However, the goals of democratic governance will not be advanced if courts enjoy open-ended discretion to compel disclosure. A judicial power that is not strictly circumscribed will result in placement of a burden on the journalist to demonstrate why disclosure should not be made. Instead, if the courts are empowered to order disclosure only in narrowly defined circumstances, the burden will properly be placed on the proponent of disclosure to show why it satisfies the standard for an exception.

The most commonly found exceptions to confidentiality are those that seek to advance the public interest in the right to a fair trial of criminal defendants. For example, a criminal defense might be based on the ability to identify a key witness whose identity is known to a journalist. If an exception to confidentiality is deemed justified in such circumstances, an enabling environment will require that a journalist be compelled to make disclosure only if the information is relevant to the criminal proceeding, is capable of being determinative (material) in regard to the defendant’s case, and is not available from any source other than the journalist. Thus, the court would be required to show with particular specificity that the information sought is necessary to the proceeding before it, including examination of the possibility of obtaining the information from a source other than a mass information media outlet.

A controversial question is whether such an exception should be available if the prosecution makes a similar standard for disclosure, or if the authorities believe that disclosure is necessary in order to prevent the commission of a crime. Here, the threat to journalistic credibility is compounded by the danger that journalists might be perceived as instruments of the public authorities if they can be compelled to turn over such information. In any case, if disclosure is deemed warranted in such circumstances, the stringent standard described above should be applied.

Another controversial question is whether any public interest would ever be of sufficient weight to require a journalist to disclose a confidential source in a non-criminal proceeding. The European Court of Human Rights confronted this issue in its March 27, 1996 decision in the case of Goodwin v. the United Kingdom. In that case, a confidential source provided a journalist with detailed information from confidential records of a business enterprise that tended to reflect the company’s precarious financial position. Because of the perceived threat of harm to the company resulting from public disclosure of the information, the English courts ordered the journalist and his publication not to make the information public. They also required the journalist to identify the confidential source, who was believed to have obtained the information illegally.

Reviewing the English courts’ orders, the European Court found that they constituted an interference with the journalist’s exercise of rights under the free press guarantees of Article 10 of the European Convention on Human Rights, and that the interests advanced by disclosure were not of sufficient weight to be necessary in a democratic society. The Court stated that limitations on the confidentiality of journalistic sources call for the most careful judicial scrutiny.

If disclosure can be required in non-criminal cases, this might have important implications for proceedings in civil litigation, including defamation lawsuits against news media defendants. Some legal systems recognize an exception to confidentiality in those circumstances where a defamation plaintiff is unable, without disclosure by the defendant journalist, to identify persons who might have knowledge about the journalist’s degree of fault in making a false statement. As in the case of criminal proceedings, if disclosure is to be permitted in such circumstances at all, it should be only if the information is indeed material to the plaintiff’s claim and is not available from any other source.

4.2.4 Licensing of Journalists and Democratic Governance

The licensing of journalists poses risks to democratic governance. A number of countries, many of them in response to proposals from UNESCO in the 1970s, have recognized the practice of journalism as a licensed profession. According to its proponents, licensing promotes journalistic ethics and responsibility, and takes the form of prohibitions against the unlicensed practice of journalism and the establishment of qualifications in the form of educational standards, such as graduation from a recognized journalism training program. On the other hand, detractors of licensing maintain that it can operate as a form of censorship by allowing the authorities to license only those journalists who do not incur the government’s displeasure.

In 1985, the Inter-American Court of Human Rights in an advisory opinion ruled that journalist licensing laws in general are not compatible with the individual and collective rights guaranteed under Article 13 (“Freedom of Thought and Expression”) of the American Convention on Human Rights. In that case, the government of Costa Rica advanced three arguments in support of its statutory licensing scheme: (1) that licensing is the normal method of regulating the practice of professions; (2) that licensing of journalists is necessary to promote the public interest in journalistic ethics and responsibility; and (3) that licensing serves as a means to guarantee the independence of journalists from their employers. While recognizing that these goals fell into the general category of ensuring public order – one of the legitimate interests supporting restrictions on the exercise of rights under the Convention – the Court concluded that none was sufficient to serve as a legitimate interference with journalistic freedoms. In response to Costa Rica’s first argument, the Court concluded that journalism differs from the practice of other professions because it entails activity expressly protected under the Convention. The Court also rejected the claim that a restriction on freedom of expression could serve as a means of guaranteeing it, concluding instead that the greatest possible amount of information is essential to the public welfare. Finally, while articulating its agreement with the goal of protecting the independence of journalists, the Court found that this goal could be achieved without placing limits on who may enter the practice of journalism.

4.3 Media Content: Direct Regulation

Universally, it is understood that freedoms of speech and of the press are not absolute. All legal systems tolerate content regulation to some extent, in order to advance certain state, collective, and individual interests. Much such regulation takes place through the mechanism of direct regulation of content, effected through legislative, executive, and judicial acts. We will take a broad view of content regulation, which we perceive as any form of external intrusion into the professional activities of gathering, editing, and reporting public sector information, and the dissemination of opinion on public matters. In this regard, it is again important to emphasize that an enabling environment will be one in which this takes place according to the rule of law.

4.3.1 Fundamental Propositions

Before we examine specific issues that arise in the context of the range of public and private interests that are advanced in the imposition of limitations on news media activity, one should bear in mind the following fundamental propositions:

Although rights of free expression are not absolute, an enabling environment is one in which the political culture recognizes the value for democratic society of the free flow of information and ideas. This recognition of the centrality of freedom of expression to fundamental values and democratic society has been expressed on numerous occasions by the European Court of Human Rights:

[F]reedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfillment…It is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.3 

Of particular significance is the Court’s recognition of the “essential function” that the news media—both print and electronic—play in advancing the goals of democratic society:

One factor of particular importance...is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart—in a manner consistent with its obligations and responsibilities—information and ideas on all matters of public interest. In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation.4 

According to the Court, this essential role informs not only the rights of news media organizations and their representatives, but also the right of the public to receive the information and ideas that the news media have imparted. In this regard, the Court has cited the news media’s «vital role» of «public watchdog» in imparting information of serious public concern. In addition, the Court has emphasized that freedom of the news media affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.

Manifestation of this recognition of value should be found throughout the normative structure, including international, constitutional, and legislative norms, and in their application in executive and judicial acts. Indeed, it can be said that an enabling environment should include textual recognition of news media freedoms in international instruments to which the state is a party, and in the state’s constitution. Moreover, these norms must be directly applicable by the courts and superior to any legislative or administrative acts.

In an enabling environment, restrictions on news media freedoms must be closely defined and narrowly circumscribed, limited to those which are necessary in a democratic society. In addition, the proponent of a restriction should bear the burden of justifying its imposition. Law must prescribe any restriction on expression or information. This means that the restriction must exist in the form of a written law which must be accessible, unambiguous, drawn narrowly and with sufficient precision so as to enable an individual to foresee the consequences of his or her actions to a degree that is reasonable in the circumstances. In their application of interference of news media freedom, the authorities must act in a lawful and non-arbitrary manner on the basis of objective criteria. In addition, an enabling environment will view such restrictions as exceptions to the general principle of news media freedom; therefore, the burden of justifying the interference must be placed on the proponent of a restriction, and the exceptions must be interpreted narrowly.

In an enabling environment, the legal system will provide adequate safeguards against abuse, including prompt, full, and effective judicial scrutiny of the validity of the restriction by an independent court or tribunal. As stated above in the section on the rule of law, the application of legal norms containing interferences with news media freedoms must be subject to independent judicial control.

An enabling environment will take a broad view as to what acts – governmental or private – constitute an interference with the exercise of news media freedoms. An interference with news media activity is not in itself a violation of fundamental standards of media freedoms. But without recognition that certain acts can be a potential violation of news media rights, it is easy for a political and legal order to limit severely the exercise of protected news media freedoms. Thus, under a narrow construction of the concept of interference, only a state’s direct intervention to block the flow of information or ideas prior to dissemination would qualify.

However, it is of central importance to evolving international standards on the relationship between the news media, the state, and society, that this narrow characterization be rejected. Instead, systems of prior review as well as a broad range of other actions by the public authorities that have an impact on expressive activity should be recognized as interferences. These include, for example, a variety of post-publication sanctions imposed on the basis of content, as well as the use of generally applicable legal rules that have an indirect effect on the exercise of editorial discretion.

The broad scope given to interferences reflects the position that all acts of public authorities – the legislative, executive, and judicial branches of government – which have a practical impact on news media activity will also potentially include a fundamental freedom of expression dimension which must be taken into account as a matter of law. This does not mean that freedom of expression will always prevail in a clash with other fundamental rights or public interests. Such an approach would make free press rights absolute, which they are not. Rather, it means that free press rights must be taken into account in determining the legitimacy of state action.

An enabling environment is one that recognizes that self-censorship poses a threat to democratic governance. The threat of legal liability imposes a so-called “chilling effect” on those persons engaged in news media activity. A key element in the advance of news media freedoms in relationship to content regulation has been the courts’ recognition that the role of the news media is of such fundamental importance to democratic governance that media representatives must to a reasonable extent be insulated from self-censorship.

An enabling environment will recognize that private acts can also implicate the exercise of news media rights. It is important that the legal system recognize what is called the «third party effect:» that fundamental guarantees of news media freedoms are broader in scope than simply offering protection against acts by those who are in public authority. Instead, the principle of third-party effect provides, for example, that a news media organ should not automatically lose its constitutional protection as a threshold matter in a lawsuit against it, simply because that lawsuit has been initiated by a private person and not a public entity.

4.3.2.1 Pre-publication Review

Systems of formal pre-publication review are incompatible with the basic principles of free press and democratic governance. In the second half of the 20th century, it became recognized as a matter of international human rights law that, as a categorical matter, formal administrative censorship is inconsistent with fundamental tenets of human rights and democracy. This principle is explicitly expressed, for example, in Article 13(1) and (2) of the American Convention on Human Rights:

Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.

The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

· Respect for the rights or reputations of others; or

· Protection of national security, public order, or public health or morals.

In accordance with this recognition of the incompatibility of prior censorship with democratic governance, most states no longer employ such structures. Instead, as the American Convention on Human Rights permits, they employ regimes of subsequent punishment of perceived abuses of news media freedoms.

4.3.2.2 Subsequent Punishment

Systems of subsequent punishment must be consistent with generally applicable international standards governing criminal and civil procedure. Systems of subsequent punishment for alleged abuses of news media freedoms are often found in the form of criminal sanctions, thereby triggering the need for recognition of international standards in criminal law and procedure (including presumption of innocence). In addition, as to protection of individual interests, they are often in the form of civil procedure. It is subsequent punishment that poses the threat of self-censorship; therefore, the fundamental propositions of fairness, impartiality, and objectivity set forth above are applicable.

4.3.2.3 Registration Systems

Media registration schemes in which content is a criterion under which the authorities in their discretion may refuse registration are suspect in an enabling environment. A number of legal systems require some form of registration of media outlets. However, in most systems, this registration is not subject to discretion by the authorities on the basis of the applicant’s anticipated content. Systems in which registration is subject to discretion based on an official’s judgment concerning the content of the media organ are suspect in an enabling environment, and will be incompatible with it unless accompanied by effective rule of law protections, including a right of appeal to an independent judiciary.

4.3.3 Protection of State Interests

Throughout history, governments have sought to impose controls on the flow of information and opinions in furtherance of a range of state interests. This is to be expected, because much of constitutional law represents the effort to find a balance between the exercise of constitutional rights and the state’s perceived duty to serve the public interest by measures such as the protection of national security and the preservation of public order. Thus, these public interests include restraints in the name of national security, sanctions against violence and public disorder, and protection of the honor of state institutions, officials, and symbols.

These controls have often been imposed by means of formal systems of pre-publication censorship. But even where formal censorship is absent, they are advanced by criminal laws providing for subsequent punishment. In addition, they have found another area of application in a number of media registration laws, which prohibit the granting of approval to operate a news outlet if the authorities conclude that the content of the applicant will constitute an abuse of free press rights.

4.3.3.1 National Security

Governments everywhere, as well as international principles, recognize that national security can be a basis for regulating free expression. At the same time, governments can enlist this broad, ambiguous concept to stifle or suppress free expression and criticism. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, a compilation of fundamental propositions adopted in 1995 by a group of experts in international law, national security, and human rights, closely address the sensitive matter of national security. For example, Principle 1.2 states: “Any restriction on expression or information that a government seeks to justify on grounds of national security must have the genuine purpose and demonstrable effect of protecting a legitimate national security interest.” Principle 1.3 states:

To establish that a restriction on freedom of expression or information is necessary to protect a legitimate national security interest, a government must demonstrate that (a) the expression or information at issue poses a serious threat to a legitimate national security interest; (b) the restriction imposed is the least restrictive means possible for protecting that interest; and (c) the restriction is compatible with democratic principles.

Finally, in Principle 2, the question of a legitimate national security interest is addressed.

A restriction sought to be justified on the ground of national security is not legitimate unless its genuine purpose and demonstrable effect is to protect a country’s existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government. In particular, a restriction sought to be justified on the ground of national security is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to national security, including, for example, to protect a government from embarrassment or exposure of wrongdoing, or to conceal information about the functioning of its public institutions, or to entrench a particular ideology, or to suppress industrial unrest.

4.3.3.2 Prevention of Disorder, Including Criminal Prosecution of Virulent Expression

The degree of virulence expressed should not in itself be the criteria for prosecution under criminal laws prohibiting incitement to violence or disorder. Under international standards, it is recognized that inflammatory speech can be responsible for inciting violence and disorder. Therefore, those standards permit restrictions on such speech.

Enforcement of a broadly stated and construed criminal law against incitement (to violence, disorder, or hatred) can be an effective means of imposing self-censorship on news media representatives. It will not be conducive to an enabling environment if the authorities impose or threaten to impose criminal sanctions based solely on the degree of virulence in the expressive activity in question. Instead, the dispositive question in a democratic society is not the degree of virulence, but instead the question of whether the speaker is advocating violence and whether it can be expected that his or her statements would produce a violent result.

The European Court of Human Rights has developed a substantial body of jurisprudence in this area. In a number of these cases, the applicants were found guilty in their domestic legal systems of publishing or broadcasting statements that were construed as incitement to violence. The Court has ruled in a number of cases that criminal liability and sentencing decisions in the domestic courts have violated news media freedoms guaranteed in Article 10 of the European Convention on Human Rights, despite the virulence of many of the communications in question, unless the statements constituted appeals to violence. For the European Court, the decisive question has been whether the prosecution in the domestic legal systems was necessary in a democratic society. In making this determination, the Court has examined the language of the statements in question, the context in which they were made, and the nature of the sanctions imposed against the applicants to determine their proportionality in relation to the perceived societal harm.

4.3.3.3 Laws Protecting Honor of Government Institutions, Officials, and Symbols

Many countries have criminal laws that seek to protect the honor of state institutions, officials, and symbols against insult. In this field of law, often called «seditious libel,» the perceived harm is not in the presentation of false factual assertions, but instead the disparagement or degradation of symbols of state power or national unity.

In an enabling environment, such laws and their application must be presumed to be incompatible with fundamental human rights and employed, if ever, only in extreme circumstances. Perhaps more than any other area, seditious libel laws criminalizing “insult” of state institutions and officials have been subject to abuse by public officials seeking to insulate themselves from the scrutiny and criticism of the news media and the public.

An important aspect of these laws generally is that truth of the statement is not a defense, and the indeterminacy of the concept of “insult” lends itself to arbitrary enforcement. Progress toward an enabling environment will not be enhanced by the existence and enforcement of laws that are not limited to protection of individual dignity or reputation, but instead are available to shield the authorities as a class from criticism.

The key perspective from which seditious libel should be approached is whether application of such laws is necessary in a democratic society. In this regard, an enabling environment will recognize that the limits of permissible criticism should be even wider with respect to the government than with individual public officials.

4.3.3.4 Election Laws

A vital element of the enabling environment for stable democratic institutions is to design institutions that minimize the abuse of government authority during elections. One element of the enabling environment directly affects the political process, and that is election-related media law. There are several aspects of such laws: access by candidates, editorializing and expressions of bias by the broadcaster, manipulation of the broadcasting system by the government, and rules concerning political advertisements. In some countries, there are regulations concerning broadcasts of the results of public opinion polls. For example, dissemination of poll results in a period shortly before the election itself may be prohibited.

The Council of Europe has called on the governments of its member States to “examine ways of ensuring respect for the principles of fairness, balance, and impartiality in the coverage of election campaigns by the media, and consider the adoption of measures to implement these principles in their domestic law or practice where appropriate and in accordance with constitutional law.”5 The Council encouraged self-regulatory measures by media professionals themselves, in the form of codes of conduct which would set out guidelines of good practice for responsible, accurate and fair coverage of electoral campaigns.

There is no perfect answer, no absolutely correct model for the set of laws that deal with these questions. In the period after 1989, in the first bloom of transition in Eastern Europe, there were often recommendations that each candidate receive equal time on a national or regional broadcasting entity. But those who considered that democratic institutions are furthered by a stable contest between a limited number of political parties found this system chaotic and counterproductive. Equal access for all declared candidates may vitiate the importance of election coverage, weaken party structure, and diminish the likelihood that several strong candidates can emerge. Some systems have a two-tiered approach: a mode that assures some access for all candidates, but a sifting process that recognizes that public debate will consolidate around several front-runners and several major issues. Some statutes place greater burdens on the state-owned media, leaving the private broadcasters freer to decide how candidate access should be furnished. Some statutes indicate that if a station provides time to candidates, it must do so in a nondiscriminatory way. Another technique is to impose a ceiling on the amount of time that can be afforded any individual candidate.

The extent to which the managers of a broadcasting entity can have their own views and use their station to promulgate them during an election is also problematic. In the United States, broadcasters have long taken the position that they have a First Amendment right to state their preferences and to editorialize in favor of one candidate or another.

European licensing regimes have been quite different and have preferred an approach in which the station is thought to be objective and impartial, a position inconsistent with editorializing. European rules, unlike those in the United States, tend, as well, to limit or prohibit political advertising, on the ground that excessive access to the media through paid advertising gives too much of a preference to the candidate of wealth.

The Italian approach serves as a good example. A draft law introduced by the government in 1999 would ban political advertising during an election campaign. The opposition, led by Forza Italia leader Silvio Berlusconi, owner of much of Italy’s private electronic media, has argued that any limits on the right to advertise are an infringement on their freedom. The bill also obliged state television to carry a certain quantity of roundtable debates and discussions among party leaders, but said that carriage of such events on private electronic media would be optional.

In many of the transitions, there has been little to shield broadcasters – private, public service or government – from coercion by the ruling party during the election process. Or to put it differently, many broadcasters, indebted to the government for the availability of their license and their continued vitality, have used their valuable asset to serve their patrons. Few elements of government-broadcaster interaction are more adverse to rule of law notions than the pressured exploitation of the power of radio and television to affect the outcome of elections.

Thus, an enabling environment for stable democratic institutions must seek to design institutions that minimize the abuse of government authority during elections. For example, in 1993, a special arbitration tribunal was established in Russia to receive complaints during the election process, whether complaints by candidates about the media, or from media about the government. This tribunal, and its successor entity, abolished on June 3, 2000 by President Putin, had little power except – as is often the case with such panels – the power to render a decision and publish it. In addition, in several societies, special election commissions are established that are empowered to impose fines for abuses of privileges by media entities, or to provide sanctions for candidates who seek to circumvent or violate election laws concerning the media.

4.3.3.5 Protection of Judicial Administration

An enabling environment will strive to achieve a balance between protecting the integrity of judicial proceedings as well as the exercise of news media freedoms and the need for public supervision of the work of the courts.

Promotion of the impartial, effective administration of justice is a goal of all democratic legal systems adhering to rule of law precepts. In a number of legal systems, penalties can be imposed on news media for the dissemination of information and commentary concerning on-going judicial proceedings. In some cases, these steps are taken to protect the fair trial rights of criminal suspects and defendants. In others, they are viewed as necessary to maintain the orderly administration of justice and public respect for the judicial system.

This is an area that exemplifies the need for recognition and application of the fundamental propositions of fairness, impartiality, and objectivity set forth in above. For example, a thin line exists between what might be a legitimate interest in protection of respect for the administration of justice and an illegitimate desire to protect the judiciary from public criticism. In the same way, while protection of the rights of criminal suspects and defendants is widely recognized as a fundamental human right, this principle could be subject to abuse if the authorities seek to shield the criminal process from public scrutiny. In sum, a categorical approach that does not sufficiently take news media freedoms into account in such circumstances will not be compatible with an enabling environment.

4.3.4 Protection of Collective Interests

Laws in this broad category seek to accomplish a number of objectives. For example, among the interests found here are protection of public peace and the dignity of identifiable groups by means of hate speech regulation, and protection of public morals and religious beliefs.

These are extremely sensitive areas of public policy, to be determined through the democratic process according to a society’s values. It is difficult to state as a matter of substantive law that any one particular approach to these matters is more or less indicative of an enabling environment. At the same time, however, it must be remembered that the fundamental propositions of fairness, impartiality, and objectivity must apply.

Perhaps of value in this complex area are the following principles articulated by the Committee of Ministers of the Council of Europe in their recommendation of October 30, 1997 on «Hate Speech»:

National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyze and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas.

To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech on the one hand and any responsibility of the media and media professionals contributing to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.

Principle 7:

In furtherance of principle 6, national law and practice should take account of the fact that:

· Reporting on racism, xenophobia, anti-Semitism or other forms of intolerance is fully protected by Article 10, paragraph 1, of the European Convention on Human Rights and may only be interfered with under the conditions set out in paragraph 2 of that provision;

· The standards applied by national authorities for assessing the necessity of restricting freedom of expression must be in conformity with the principles embodied in Article 10 as established in the case law of the Convention’s organs, having regard, inter alia, to the manner, contents, context and purpose of the reporting;

· Respect for journalistic freedoms also implies that it is not for the courts or the public authorities to impose their views on the media as to the types of reporting techniques to be adopted by journalists.

4.3.5 Protection of Individual Interests

Legal systems throughout the world seek to protect what are viewed as the individual personality rights or interests of good reputation, privacy, and dignity. Generally, these protections take the form of criminal and civil proceedings in defamation, privacy protection, and insult. An important feature of this complex area of law is the fact that in many legal systems these interests, similar to the interests in freedom of the news media, rise to the level of fundamental rights guaranteed in constitutional and international norms. Once again, this interaction between competing rights and interests must be subject to the fundamental propositions of fairness, impartiality, and objectivity.

4.3.5.1 Recognition of Sensitive Issues and Values

An enabling environment must recognize the sensitivity of the issues and values at stake in the intersection of free news media and competing individual interests.

In the area of individual personality rights protection, a dominant theme throughout the world is the high level of use and visibility of defamation law actions, brought under both criminal and civil law. The prevalence of such actions, including the threat of penal and/or monetary sanctions, poses the threat of self-censorship. It is for this reason that many legal systems have recognized the existence of a fundamental rights dimension in the form of freedom of expression. The European Court of Human Rights, for example, has developed an extensive body of case law that includes significant protections for statements made regarding matters of public interest. These include the maxim that public officials must tolerate considerably more criticism than must private individuals, and that the burden of evidentiary proof cannot be imposed on a defendant to prove the truth of a value judgment or statement of opinion.

An important determinant for the court is the question of whether the defendant acted “in good faith,” a standard that the Court appears to interpret as conduct consistent with journalistic standards and the duty to report on matters of public interest.

4.3.5.2 Issues in Defamation Law

It is of fundamental importance in an enabling environment that the legal system recognizes that its application of defamation laws is at the same time an interference with the exercise of news media freedoms.

A defamatory statement is one that is deemed to lower a person’s reputation in the community. Defamation laws are found in legal systems throughout the world, and protection of the interest in reputation is recognized in international instruments. Legal norms intended to protect these interests are often found in criminal codes and in civil code or tort law provisions recognizing the interests as civil rights capable of enforcement by means of actions for monetary damages.

However, unless certain protections are available, defamation laws can be instruments of repression of the news media in its reporting on matters of public interest. News media activity, by its very nature, will often present information and ideas which criticize individuals, may be construed as depicting individuals in a negative image, or may be viewed as invasive of an individual’s personal privacy. Unless news media freedoms are taken into account in defamation law, the threat of criminal sanctions or civil money damages awards will effectively cause self-censorship, to the detriment of democratic governance.

In this regard, it is detrimental to news media freedoms if a legal system takes an approach that categorically places false statements of fact or expressions of opinion deemed to be excessively critical completely outside the protection of fundamental guarantees of news media freedoms. An enabling environment will adopt the view that actions in defamation (as well as insult) inherently have a news media freedom dimension, owing to recognition of their inherent chilling effect and its negative consequences for the news media’s essential role in democratic society and the public’s right to know.

In the seminal case of Lingens v. Austria, the European Court of Human Rights in 1986 discussed the threat that self-censorship poses to the public’s right to know. In that case, Austria argued before the Court that the post-publication sanction of a monetary fine did not “strictly prevent” a journalist from expressing himself. The Court, however, concluded that the penalty imposed on the author:

[N]onetheless amounted to a kind of censure, which would be likely to discourage him from making criticisms of that kind again in future. In the context of political debate such a sentence would be likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, a sanction such as this is liable to hamper the press in performing its task as purveyor of information and public watchdog.6 

Thus, the European Court has consistently held that public officials must tolerate criticism related to matters of public concern to a greater extent than must private persons.

The status of the plaintiff is one of the many crucial variables that should be considered in developing a defamation law approach that is compatible with an enabling environment. Others include the ascertainment of the correct placement of the burden of proof imposed on the parties in regard to the alleged falsity of the statement in question. For example, the European Court of Human Rights recognizes that the placement of a burden on the defendant to prove the truth of a statement of opinion is incompatible with the exercise of news media freedoms under the European Convention on Human Rights. The Court’s approach is grounded in the position that opinions are personal, and unlike statements of fact, cannot be subject to rectification.

Another important question is whether only defendants who were at fault should be liable for false statements; in recognition of the role of the news media in democratic governance, many legal systems will not impose liability if the journalist was not at fault. In addition, under the test established by the United States Supreme Court in New York Times v. Sullivan (1964), a finding of liability will be made in cases where the plaintiff is a public official or public figure only if the defendant knew the statement in question as false and purposefully avoided making a determination as to falsity.

4.3.5.3 Protection of Individual Dignity

An enabling environment will seek to balance protection of individual dignity against the threat to news media freedoms by limiting the application of insult laws and treating them with caution. Insult laws carry an inherent threat to the exercise of news media freedoms, due in particular to their ambiguous nature and the absence of truth as a defense. It is widely accepted that protection of individual sense of self-worth can be implicated and perhaps violated by dissemination of personal attacks. Thus, many legal systems have established criminal and/or civil sanctions against insulting statements, in which the crucial question is not the truthfulness of the statement in question (truth is not a defense), but the intent of the speaker. Insult laws can be dangerous for the exercise of news media freedoms if not construed and applied narrowly, limited strictly to circumstances in which the statement carried no information of public importance, and clearly expressed with intent solely to injure the victim.

4.3.5.4 Protection of Individual Privacy

In adjudicating disputes concerning claimed violations of personal privacy, legal systems must strive to develop standards for determination of distinctions between public and private information. Many legal systems place a high priority on protection of individuals against dissemination of statements that violate their personal or family privacy. Here, the important point is that reasonable construction of the notion of privacy is necessary. It should not be a shield behind which to hide acts of public importance from public scrutiny. A difficult problem here is separating the notions of “public importance” from “public interest”, since it is certainly possible that the latter might include information that is legitimately private.

4.3.5.5 Right of Reply or Correction

Legal obligations to provide an opportunity to reply or to demand a correction concerning media content can serve to address perceived abuses of journalistic freedoms in a form that is less threatening to media independence than regulation by means such as defamation lawsuit. However, advancement of an enabling environment will be impeded if such obligations sweep too broadly or intrude too deeply into the exercise of editorial discretion.

In many legal systems, legislative acts such as civil codes or mass media laws provide judicial remedies of reply or correction to persons whose legal rights or interests have been violated by dissemination of media content. Under a right of reply, a news media outlet is obliged to disseminate a statement that the injured party has prepared. The right of correction (or «retraction»), on the other hand, requires the media outlet to disseminate its own statement correcting its earlier offending statement. The availability of such remedies is often viewed as a more efficient and effective means of satisfying the concerns of persons who believe they have been injured by offensive media content. It may also be viewed in this way by those who seek access to the mass media for dissemination of their views in opposition to statements previously broadcast or published. In addition, proponents of such remedies believe that they serve as an alternative to intrusive and often expensive defamation litigation that can exert a chilling effect on the exercise of independent editorial discretion. Viewed in this light, the availability of these remedies can serve to advance development and maintenance of an enabling environment by providing the authorities and general public with assurance that the effect of journalistic abuses can be alleviated without unreasonable interference into the exercise of journalistic freedoms.

But further considerations should exist beyond these practical concerns. For example, many legal systems that recognize rights of reply or correction limit the exercise of such rights to factual statements in the media, and not to expressions of opinion. Also, perhaps the persons who are allowed to pursue such remedies through the judicial system should be limited to those who can prove that the statement in question was false, and perhaps also that they have suffered an injury to their legal rights. Thus, a claimant might have to prove not only that the statement in question was false, but that it also lowered her or his reputation. Finally, any system of reply or correction should provide a legal defense by relieving a news media outlet of any duty to publish a reply in cases where it will lead to a legal violation. For example, when a reply would constitute a statement defamatory of a third person, the outlet must not be obliged to honor the complainant’s claim.

4.4 Content-Neutral Regulation: Risk of Manipulation

An enabling environment will be one in which legal institutions are able to provide media with sufficient substantive and procedural protections against indirect manipulation. In all legal systems, an almost limitless range of opportunities exists for public officials or private actors to attempt to manipulate the media, if they are inclined to do so. These opportunities are found in the manipulation of laws that are not explicitly targeted against news media content, but instead are seemingly content-neutral on their face while still capable of influencing the editorial decision-making of the media. Here, even more than with the material above, it is impossible to be exhaustive. There will always be ways to influence media content. There are many ways in which the public authorities can seek indirectly to influence media content. Subsidies, customs regulations, copyright, newsprint availability, costs of doing business with state entities (publishing houses), taxation, general anti-competition laws, public access requirements, and access in election campaign requirements are only a few examples.

These methods of indirect influence can occur by way of both substantive rules and their application. For example, regarding the former, the authorities could establish discriminatory tax classifications that impose higher taxes on some media outlets than are imposed on others. On the other hand, it might be the case that tax classifications as a matter of normative law are equal, but that different media outlets will be subject to selective enforcement – a matter of law application.

Attention must be paid to the tax laws of a state in transition and their enforcement. In too many societies, nonpayment of taxes has been used as a pretext by government authorities to raid, harass, or close a newspaper. One element of the rule of law, significant when it comes to the press, is a bar on selective enforcement. Of course, no statute is fully enforced against all those who engage in violations, but it is often the case that selective enforcement is the culprit in actions against print media or broadcasting stations.

It is not possible to state simply that such substantive rules should be outlawed in an enabling environment. These measures are enacted as part of the lawmaking and enforcement authority found in all legal systems. Therefore, the best attributes of an enabling environment in this regard will be the existence of adequate rule of law protections and consideration of the fundamental propositions of fairness, impartiality, and objectivity set forth above.

4.5.1 Internal Press Freedom

An important issue for an enabling environment is the extent of journalists’ and media professionals’ freedom to exercise their rights and perform their responsibilities in light of disagreement with private ownership. In a number of countries, the legal systems attempt to accommodate these competing interests by providing incentives for the development of an «editorial program» and the establishment of systems for the reconciliation of disputes.

4.5.2 Physical Protection

An enabling environment is one in which the authorities have the willingness and power to prosecute those persons who physically intimidate or attack media representatives, i.e., those who seek to act violently against news media representatives will not be able to do so with impunity. It will be extremely difficult for the news media to function effectively if generally applicable criminal laws are not enforced by the authorities, or are done so in an arbitrary, selective fashion.

In a 1996 Recommendation, the Committee of Ministers of the Council of Europe addressed these questions, calling on member states to «investigate instances of attacks on the physical safety of journalists occurring within their jurisdiction,» and to «use all appropriate means to bring to justice those responsible for such attacks.»7 It should also be noted in this regard that journalists’ and media professional organizations can play a positive role by providing a sense of security for their members.

 1 In this discussion, the term «journalist» is used to encompass print media publishers and electronic media owners and executives, as well as editors, commentators, and reporters.

 2 Two Internet sources containing numerous examples of professional codes, as well as other relevant material, are: (1) the “EthicNet” web site of the University of Tampere, Finland [http://www.uta.fi/ethicnet]; and (2) the “Media Ethics” web site of Professor Claude-Jean Bertrand [http://www.u-paris2.fr/ifp/Deontologie/ethic].

 3 Nilsen and Johnsen v. Norway ¶ 43, Judgment of November 25, 1999.

 4 Bladet Tromso and Stensaas v. Norway ¶ 59, Judgment of May 20, 1999.

 5 Recommendation No. R (99) 15, Committee of Ministers, Council of Europe, “On Measures Concerning Media Coverage of Elections” (Adopted by the Committee of Ministers on 9 September 1999).

 6 Lingens v. Austria ¶ 44, Judgment of June 24, 1986.

 7 Recommendation No. R 96(4), Committee of Ministers, Council of Europe, «On the Protection of Journalists in Situations of Conflict and Tension (Adopted by the Committee of Ministers on 3 May 1996).

2000 ă.