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OBSTACLES TO FREE SPEECH AND THE SAFETY OF JOURNALISTS3 May 2013

Individual Torts and Collective Victims:

The Societal Impact of Crimes Against Journalists in International Case Law

Dr. Carmen DraghiciSenior Lecturer, The City Law School

Direct and indirect attacks against freedom of expression

Potential breaches of international free speech guarantees

Direct attacks: act-focused

o Suppression of journalistic output prior censorship, seizure of material, injunction against publication etc.

o Interference with journalistic toolssearch of premises, pressure to disclose confidential sources etc.

Indirect attacks: agent-focused

o Threat/use of physical violence against the person of the journalist by the authorities or with the authorities’ connivance

o No immediate connection with one particular act of speech

(1) Direct attacks against freedom of expression

Extensive recognition of free speech violations for direct attacks in European case law

• Pressure to disclose confidential sources (injunctions/ penalties)

Goodwin v the United Kingdom (1996)

Voskuil v Netherlands (2007)

Financial Times and Others v UK (2009)

Sanoma Uitgevers B.V. v. the Netherlands (2010)

Direct attacks against freedom of expression (cont’d)

• Disproportionate defamation laws

Castells v Spain (1992)

Bergens Tidende v Norway (2000)

Prager and Oberschlick v Austria (1995)

See also other regional systems:

Inter-American systemVerbitsky v Argentina (1994)Kimel v Argentina (2008)

African systemDeclaration of Principles on Freedom of Expression in Africa (2002)

(1) Direct attacks against freedom of expression

• Unlawful searches of home/ work premises and seizure of material

Roemen and Schmitt v. Luxembourg (2003)

Ernst v. Belgium (2003)

Tillack v. Belgium (2007)

Direct attacks against freedom of expression (cont’d)

• Prior censorship (seizure of all equipment, closure of business premises)

Ozgur Gundem v Turkey (2000)

See also

Inter-American Commission and Court on Human RightsSteve Clark v Grenada (1996)Alejandra Marcela Matus Acuña et Al. (2005)

Ivcher Bronstein v Peru (2001)

African Commission on Human and Peoples’ RightsZimbabwe Lawyers for Human Rights & Associated Newspapers of

Zimbabwe/ Zimbabwe (2009)

(2) Indirect attacks against freedom of expression

No recognition of indirect violations of freedom of expressionIn European case law

Kilic v Turkey (2000)

Alleged violation of Article 10:

“...his brother was killed because he was a journalist. As he was targeted on account of his journalistic activities, this was an unjustified interference with his freedom of expression. The killing was therefore an act with a dual character which should give rise to separate violations under Articles 2 and 10”

ECtHR: “complaints arise out of the same facts considered under Article 2... does not consider it necessary to examine this complaint separately”

Violation of Article 2 (right to life) disconnected from the motivation

Case addresses impunity for murder, not for targeting journalists/ interfering with free speech

Indirect attacks against freedom of expression (cont’d)

Gongadze v Ukraine (2006)

Applicant: no reliance on Art. 10 ECHR

Political journalist killed after unsuccessful complaints about threats and request for protective measures

ECtHR:Vulnerable position of journalists covering politically-sensitive topics – failure to protect life

State expected to afford journalists facing life threats from third parties protection commensurate to risk

No reference to the chilling effect/ public dimension of the violation

Indirect attacks against freedom of expression (cont’d)

Dink v Turkey (2010)

Murder of Armenian journalist militating for recognition of the genocide against ArmeniansCriminal proceedings for denigration of Turkish identityAssassinated

ECtHR:Turkish security forces aware of hostility towards Dink in nationalist circles and of the

planned assassinationFailure to protect his life in the face of a real and imminent threatViolation of Art. 2

Violation of Art. 10 only in respect of criminal proceedings

Indirect attacks against freedom of expression (cont’d)

Contrast with Inter-American jurisprudence:

Hugo Bustios Saavedra v. Peru (1997) [Commission]

Deterring effect of killings and injuries upon journalists reporting on armed conflict

Perozo et al v. Venezuela (2009) [Court]

Harassment, physical and verbal assault of journalists by State agents/ private individuals - double violation of Art. 5 (1) [right to have one’s physical, mental, and moral integrity

respected] and Art.13 (1) [freedom of thought and expression]

Are attacks against journalists private violations?

Journalistic free speech: different from general free speech because of audience’s rights

(a) Right of the audience to receive information

(b) Media as public watchdog of democracy

Are attacks against journalists private violations?

(a) Right of the public to receive information

Free speech: imparting and receiving information

Dual – active and passive – nature:

Article 19 UDHR: “freedom of opinion and expression […] includes freedom to hold opinions withoutinterference and to seek, receive and impart information and ideas”

See also:

Article 10 (1) European Convention on Human RightsArticle 19 (2) International Covenant on Civil and Political RightsArticle 13 (1) Inter-American Convention on Human RightsArticle 9 African Charter on Human and Peoples’ Rights

Are attacks against journalists private violations?

Right of the public to receive information (cont’d)

Human Rights Committee

Mavlonov et al. v Uzbekistan (2009)

“public also has a corresponding right to receive media output”

Are attacks against journalists private violations?

Right of the public to receive information (cont’d)

European Court of Human Rights

Individual right to receive information

Autronic v Switzerland (1990) reception of uncoded television programmes from abroad Open Door and Dublin Well Woman v. Ireland (1992) information on pregnancy termination facilities abroad

Khurshid Mustafa and Tarzibachi v. Sweden (2008) satellite dish enabling immigrant family to receive information from country of origin

Are attacks against journalists private violations?

Right of the public to receive information (cont’d)

Inter-American Court of Human Rights

Collective right to receive – the other facet of the right to impart information and ideas

Advisory opinion on compulsory membership in an association for the practice of journalism (1985)“when an individual’s freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to “receive” information and ideas”

Inter-American Commission on Human RightsSteve Clark v. Grenada (1996)“two-fold aspects of the right to receive and impart information”

Alejandra Marcela Matus Acuña et al. v Chile (2005)“society was deprived of its right to access to information and opinion”

Marcel Claude Reyes v Chile (2006)self-standing right to freedom of information

Are attacks against journalists private violations?

Right of the public to receive information (cont’d)

African Commission on Human and Peoples’ Rights

Collective right of the public to receive

Article 19 / Eritrea (2007)imprisonment of journalists “deprives not only the journalists of their right to freely

express and disseminate their opinions, but also the public, of the right to information”

Scanlen & Holderness / Zimbabwe (2009)“collective right to receive any information”

Are attacks against journalists private violations?

(b) Public watchdog of democracy

Accountability of public office-holders

Human Rights Committee

General Comment no. 34 (2011)

Gauthier v Canada (1999)

Marques de Morais v Angola (2005)

Mavlonov et al v Uzbekistan (2009)

Are attacks against journalists private violations?

(b) Public watchdog of democracy

European Court of Human Rights

Lingens v Austria (1986)

Castells v Spain (1992)

Are attacks against journalists private violations?

(b) Public watchdog of democracy

African Commission on Human and Peoples’ Rights

Constitutional Rights Project et al./ Nigeria (1998)freedom of expression “vital to an individual’s… participation in the conduct of public affairs”

Article 19 / Eritrea (2007) “free press…valuable check on potential excesses by government”

Are attacks against journalists private violations?

(b) Public watchdog of democracy

Essential pre-condition for the effectiveness of the right to vote

Human Rights CommitteeGeneral Comment no. 25 (The right to participate in public affairs, voting rights and equal

access to public service) (1996)free press able to inform/comment on public issues: vital for the exercise of right to vote

Inter-American Court of Human Rights

Ricardo Canese v Paraguay (2004)freedom of expression - cornerstone for debate during the electoral process

Are attacks against journalists private violations?

Because of the public’s rights to receive and the watchdog function of the media,

indirect attacks against media freedom:

aggravated violations targeting not only individuals but also organs of democracy

attack against a public interest

challenge to the rule of law

special case of impunity

Failure to recognize attacks against journalists as free speech violations and respond accordingly

– separate attack on a public interest and a further challenge to the rule of law

Concluding remarks

Insufficient recognition of professionally-motivated attacks against the person of journalists as attacks on freedom of expression

Crimes against free speech vs crimes against the person of journalists:an acceptable dichotomy?

Deprivation of life – the most extreme form of censorship – chilling effect

Flagging up the collective ramifications of individual violations in judgments may prompt further enforcement

Options: aggravated violations of individual rights, where motivated by media role separate violations

Is this a problem of enforcement exclusively, or are further legal provisions required?