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Strengthening Journalists’ Rights, Protections and Skills


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International Press Institute (IPI) Senior Press Freedom Adviser Steven M. Ellis will present information related to the IPI’s current project “Strengthening Journalists’ Rights, Protections and Skills: Understanding Defamation Laws versus Press Freedom”. The project seeks to examine the effects that defamation, insult and blasphemy laws in the 28 EU member countries and five candidate countries have on the practices of journalism and the exercise of press freedom.

IPI will soon be issuing a study detailing defamation law in EU member and candidate states, examining the extent to which these laws comport with international standards and offering recommendations for potential changes. Ellis will explain to participants the purpose, history and methodology behind the forthcoming study and share details regarding planned follow-up workshops and trainings. Using specific examples from relevant countries, Ellis will also detail potential pitfalls that journalists face under national criminal and civil laws on defamation, insult and blasphemy. Participants will be given examples of types of conduct that may lead to liability, potential defences to liability, potential consequences that a finding of civil or criminal liability may carry and examples of recent legal developments. Finally, he will provide a broad overview of relevant international free expression standards in order to foster awareness among journalists of their rights in cases where national laws have not yet caught up to those standards.

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Strengthening Journalists’ Rights, Protections and Skills

  1. 1. “Strengthening Journalists’ Rights, Protections and Skills: Understanding Defamation Laws versus Press Freedom” International Press Institute CMPF Boot Camp for Journalists, Florence, 9 June 2014
  2. 2. About IPI • Based in Vienna, the International Press Institute (IPI) is the world’s oldest global press freedom organization. • Network of editors, media executives and leading journalists dedicated to furthering and safeguarding press freedom, promoting the free flow of news and information, and improving the practices of journalism. • Formed in 1950 at Columbia University on the belief that a free press would contribute to the creation of a better world • Members in more than 120 countries and holds consultative status with the United Nations and the Council of Europe.
  3. 3. Outline of Presentation • IPI Defamation Law Project • National Defamation Laws • International Standards on Defamation Law • Survey
  4. 4. IPI Defamation Law Project • Strengthening Journalists’ Rights, Protections and Skills: Understanding Defamation Laws versus Press Freedom” • Purpose of Project • Constituent Parts – Research / Report – Workshop
  5. 5. IPI Defamation Law Project Purpose of Project • Q: Why are defamation laws so problematic? A: Chilling effect on free expression – Can be abused to shut down scrutiny when used beyond legitimate scope (protecting reputation) – Journalists often don’t know scope of risk – Laws in Europe serve as justification for repressive laws elsewhere in the world
  6. 6. IPI Defamation Law Project Research / Report • With SPP Centre for Media and Communication Studies (CMCS) at Central European University in Budapest • Thorough study on the current status of defamation law across EU member and candidate countries
  7. 7. IPI Defamation Law Project Research • Looking at: – The relevant statutes in terms of criminal defamation – Civil defamation provisions – How courts in those countries have interpreted or applied these laws – Recent legal developments – Relevant international agreements, as interpreted by courts and international human rights rapporteurs
  8. 8. IPI Defamation Law Project Report • Set of principles on defamation law • A general overview of how European countries stack up • Detailed information, country by country, on criminal law, civil law, case law and recent legal developments • Discrepancies between local laws and those principles, and recommendations for change
  9. 9. IPI Defamation Law Project Report • Give journalists a tool to know what potential legal risks they face in a given country • Make recommendations, based on international principles, that journalists, civil society members and government representatives can use in advancing freedom of expression
  10. 10. IPI Defamation Law Project Report Principles (broadly) • 1. Support the rights to freedom of opinion, expression and information, and define the sole legitimate purposes of defamation laws – protect against unjustified injuries to reputation • 2. Call for the abolition of criminal defamation • 3. State that any punishment for defamation must be proportionate to harm caused, and to the ability to pay (no prison sentences)
  11. 11. IPI Defamation Law Project Report Principles (broadly) • 4. Affirm the right to mount a defence, including: – Separation of fact and value – Truth – Reasonable publication (good faith/public interest) – Honest opinion (fair comment) – Privilege • 5. Reject increased protection for political figures
  12. 12. IPI Defamation Law Project Report Principles (broadly) • 6. Reject protection for the state, its institutions, or its symbols • 7. Reject similar protection for foreign states • 8. Reject protection for religious symbols or feelings
  13. 13. IPI Defamation Law Project Perception Study • Knowledge of defamation laws in general • Knowledge of specific defamation laws in the countries where they practice • Personal experience with such laws • Access to legal resources
  14. 14. IPI Defamation Law Project Workshops • Four cities across Europe • Bring together journalists, lawyers and members of civil society. • Establish connections between journalists and attorneys and members of civil societies to build up mini-networks
  15. 15. National Defamation Laws Overview • What is defamation? • Defences • Penalties • Other redress? • Who faces penalties?
  16. 16. National Defamation Laws What is defamation? • In general, a statement that harms a person’s reputation or is offensive • Involves a person other than the speaker or the subject • Broadly, ‘Libel’ and ‘Slander’ • But not just that...
  17. 17. National Defamation Laws Other types of ‘defamation’: • Insults to individuals’ reputation or dignity • Insults to state symbols (seals, flags etc) • Contempt for public authority (“outrage”) • Lese-majeste • Blasphemy • Protection for the dead • Protection for public morals
  18. 18. National Defamation Laws Defences (broadly) • Truth • Fair Comment – Honest Opinion • Reasonable Publication • Privilege
  19. 19. National Defamation Laws Penalties • Criminal v. Civil Laws (generally) • Imprisonment • Criminal Fines / Civil Damages • Work Bans • Other redress – correction or right of reply?
  20. 20. National Defamation Laws Notes on Penalties • Some jurisdictions have higher liability for defamation through the mass media • Some jurisdictions also have higher protection for public officials and heighten penalties
  21. 21. National Defamation Laws Who faces penalties? • Criminal – Reporter/Correspondent • Civil – Publisher
  22. 22. National Defamation Laws Takeaway • As a journalist, you need to learn about potential liability from different defamation laws – you may face imprisonment, fines or loss of job (or even career) • Suggestion 1 – Read our report! • Suggestion 2 – Know what support you have from, can do at, an international level!
  23. 23. International Standards Sources • International conventions and work of the U.N. Human Rights Committee • European Court of Human Rights rulings • Inter-Governmental Bodies interpretations
  24. 24. International Standards International Covenant on Civil and Political Rights • Article 19 of the Covenant affirms the universal right to free expression, including the “freedom to seek, receive and impart information and ideas of all kinds”. • Can be restricted, but only insofar as any such restrictions “are provided by law and are necessary for the respect of the rights or reputations of others or for the protection of national security or of public order, or of public health and morals”. [emphasis added]
  25. 25. International Standards ICCPR • U.N. Human Rights Committee • First Optional Protocol • General Comments 34
  26. 26. International Standards European Court of Human Rights rulings • Art. 10 of the European Convention on Human Rights guarantees freedom of expression, including the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers”.
  27. 27. International Standards European Court of Human Rights rulings • Like the ICCPR, Art. 10 provides that the right to free expression may be limited but only insofar as any restrictions “are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputations or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
  28. 28. International Standards European Court of Human Rights rulings • Three-part test: – Is the interference prescribed by law? – Does the interference pursue a legitimate aim? – Is the interference necessary in a democratic society (i.e., is the interference proportionate to any aim pursued)?
  29. 29. International Standards ECHR – Prescribed by Law (Foreseeability) • Is the conduct authorised by law? • Law must be “formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”.
  30. 30. International Standards ECHR – Legitimate Aim • Does the interference with the right pursue a legitimate aim? • Art. 8: Right to respect for private, family life • Negative obligations & positive obligations • ‘Certain level of seriousness…causing prejudice’
  31. 31. International Standards ECHR - Necessary in a democratic society • Is the interference proportionate to the aim? • Starting point is normally pro-free expression, based on importance to democracy and role of press in democratic society • Journalists have a right to share information and public has a right to receive information
  32. 32. International Standards Proportionality Factors • Is there a “pressing social need” for the interference? • What is the state’s “margin of appreciation”? • What is the nature and severity of the sanctions imposed? • Potential chilling effect? • Does the interference take on a “censoring nature”? • What procedural guarantees were present • Were they respected?
  33. 33. International Standards European Court of Human Rights rulings • One caveat – the calculus changed in 2004 • In the Court’s view, “as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect”. • Court has come to see its role as making sure that national courts have “struck a fair balance” between free expression and reputation/private life – and has started to apply criteria used in privacy cases to defamation cases
  34. 34. International Standards Inter-Governmental Organisations • UN Special Rapporteur on Freedom of Opinion and Expression • OSCE Representative on Freedom of the Media • OAS Special Rapporteur on Freedom of Expression • African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information • 2010: identified criminal defamation as one of the 10 key challenges to freedom of expression
  35. 35. Survey •
  36. 36. “Strengthening Journalists’ Rights, Protections and Skills: Understanding Defamation Laws versus Press Freedom” International Press Institute CMPF Boot Camp for Journalists, Florence, 9 June 2014