Media freedom under review

20 September 2010 by

Updated | Recent weeks have seen some interesting developments in the debate over freedom of expression of the press.

Last week saw a decision of Grand Chamber of the European Court of Human Rights in Sanoma Uitgevers B.V. v. the Netherlands. The case related to the protection of journalistic sources, and has been described as a “victory for press freedom”.

The court held that an order for the compulsory surrender of journalistic material which contained information capable of identifying journalistic sources requires legal procedural safeguards commensurate with the importance of the principle at stake. The Dutch prosecutors in the case, which had ordered the production of a CD-ROM containing potentially incriminating photographs of participants in an illegal race, had therefore breached Article 10 (freedom of expression).

We will cover the case in more detail in the coming days. In the meantime, comments can be found on the Inforrm Blog, ECHR blog and Strasbourg Observers blog.

The New York Times has also commented on the case in a detailed review of European legal protections of journalistic sources. Eric Phanner comments that

In theory, European shields are among the most robust in the world; Europe may lack the First Amendment, the American constitutional guarantee to free speech, but protection for the reporter-source relationship is cited in the European Convention on Human Rights, and many European countries have written it into law. In practice, however, there are still plenty of gray areas, resulting in long and expensive legal battles.

And, in relation to the Sanoma Uitgevers B.V. case,

even this case might not provide European journalists with a definitive precedent. “The real test will come when there’s a question of national security,” said Jo Glanville, editor of Index on Censorship, a free-speech campaign group based in London.

It is always interesting to consider the comparative position of press freedom in Europe – regulated by national law and the European Convention on Human Rights (particularly Article 10)-  and the United States, where freedom of expression is protected by the First Amendment to the American Constitution. Whilst the ECHR protects freedom of expression, this can be restricted in certain circumstances such as in the protection of national security. It is also strongly counterbalanced by the right to privacy under Article 8.

Reform of press regulation?

Meanwhile, the Andy Coulson ‘Metgate’ or ‘Hackgate’ controversy (see my post) continues to draw comment. In particular, questions have been asked of the Press Complaints Commission and whether it is doing enough to reign in the press. The Inforrm Blog argues in a recent post that the PCC should be replaced by a statutory regulatory body, independent of the government and the press:

We suggest that there is a strong argument in favour of this… alternative. The law is a blunt (and very expensive) instrument for dealing with inaccurate or intrusive stories. An effective regulator with statutory powers could deal with these matters in a way which recognizes the freedom of the press to investigate and publish public interest stories whilst, at the same time, protecting the rights of the public.

Inforrm reports today that the Liberal Democrat party conference has passed a motion supporting such a body.

Of course, a strong and independent PCC could affect press freedom in different ways. A stronger PCC may have brought News of the World journalists to book for illegal phone-hacking earlier, and also could have prevented the alleged deficiencies in the subsequent police investigation. The boundaries of freedom of expression should lie within the criminal law, and the PCC should play an important role in ensuring this remains the case.

However, a stronger PCC could also make it easier for individuals to prevent the publication of embarrassing revelations. Whilst the PCC’s own code of practice defines fairly clearly what is in the public interest – and this definition should allow for both privacy and freedom of expression rights – the PCC itself should be counterbalanced by equivalent organisations acting as advocates for freedom of expression.

Moreover, as Inforrm point out, what is needed in the context of recent kiss-and-tell exposes is a “greater sense of “journalistic” responsibility and a keener appreciation of the limits of “public interest””. This would be best and most effectively accomplished by self-regulation. The trick is to encourage the press to do so without unduly limiting freedom of expression. This may involve a more realistic threat of sanction by a more powerful PCC, but the balance needs to be very carefully considered before a stronger regulator is brought into being.

Update 20/9/10: Peter Preston, former editor of the Guardian, writesWhat do those in Britain – MPs and journalists among them – calling for statutory regulation of newspapers see as their own dividing lines? Fines? They’re on the agenda. The enforced printing of court-ordered apologies? They’re on the coalition’s early agenda as well. A Whitehall-appointed standards commission? The assumption, time and again, is that only the might of the law can produce the requisite standards of purity – that governments must act.”

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