Freedom of Expression and Information
Media Freedom and
Investigative Journalism
under the European Human Rights System
Pr...
MIKKELSEN and CHRISTENSEN
v. DENMARK 2011
Firework case - Investigative Journalism
Documentary about illegal firework in DK
Background/ratio
The Firework Act was amended following a dramatic accident
that happened at a fireworks factory in Denmar...
Denmark Fireworks Act, no. 193 of 24 May 1972
Amended by Act no. 1060 of 9 November 2005
Section 2
(1) Fireworks and other...
Why journalists claim ‘rights’ to breach the law?
(..)
UNDERCOVER, HIDDEN CAMERA, FALSE IDENTITY, TRESPASSING,
CHECK-IT-OU...
What are the limits?
What are the conditions to breach the law?
“Public interest” : issue important for society
No other w...
DR-journalists convicted : criminal offence
City Court : Journalists convicted of having acquired and transported
illegal ...
The European Court of Human Rights:
fines justified
Journalist were not hindered in broadcasting the programme
Legislation...
Is the ECtHR neglecting the needs and
importance of investigative journalism
in this case?
How is investigative journalism...
What can (investigative) journalists
expect from the European Court of
Human Rights?
What is the impact of the ECHR and
of...
Towards
a European Constitutional Dimension
of
Freedom of Expression,
Media Freedom and
Investigative Journalism
Five exam...
Jersild v. Denmark (1994)
Programme ‘Jersild’ - DR
Upcoming racism
Greenjackets
Interviews = hate speech
Journalist also c...
Özgür Gündem v. Turkey (2000)
Journalists of Turkish newspaper
Harrased, assaulted, killed
Prosecutions, confiscations
and...
Fattulayev v. Azerbaijan (2010)
Convicted for defamation, threat of terrorism
8 years and 6 months imprisonment
Violation ...
Mosley v. the UK (2011)
ECtHR : No duty of prior notification (Art. 8)
Such a duty would amount
to a violation of Article ...
Axel Springer v.
Germany 2012
Articles in BILD about the arrest and conviction of a well known
television actor (X.) for t...
Art. 10 = Freedom of expression
without interferences
by public authorities
Under scrutiny of European Court of Human Righ...
The last 35 years,
since Sunday Times v. UKSunday Times v. UK (1979),
the ECtHR has undoubtedly created an added value to
...
Violations Article 10 ((1959)1979-2013)
- Italy, Slovak Rep, The Netherlands 7
- Ukraine 9
- Bulgaria and Greece 10
- Hung...
Article 10 ECHR
“Europe’s First Amendment”
10.1. Everyone has the right to freedom of expression
Freedom to hold opinions ...
Characteristics of Article 10 ECHR
Freedom of expression and information
related with/in function of public interest & dem...
Article 10 ECHR and media/journalism
In principle no interferences by public authorities,
including the judiciary!
Pertine...
ECtHR does not want to protect idle gossip
about the privacy of persons or celebrities
merely serving to satisfy the curio...
Examples of “public watchdog”-function
Thorgeir Thorgeirson v. Iceland 
Article in newspaper
‘members of police units Reyk...
Fressoz & Roire v. France
Publication of tax files
In principle journalists are not above the
law, but
… the interest of t...
Bladet Tromsø and Stensaas v. Norway 
Article in newspaper revealing that
crew members of vessel were involved in illegal ...
Radio Twist v. Slovakia 
Broadcasting of illegally recorded tapes of conversation
between State Secretary at the Ministry ...
New dimensions
Broadening the scope of Article 10 
Relevance for investigative journalism
1. Protection of journalistic so...
Protection of sources under umbrella of
freedom of expression?
Article 10 ECHR contains no reference to freedom to
seek in...
European Court 27 March 1996
Goodwin v. UK
Protection of sources is basic condition for press freedom 
“Without such prote...
1/ Goodwin v. UK
27 March 1996
2/ Roemen and Schmit v. Luxembourg
25 February 2003
3/ Ernst and others v. Belgium
15 July ...
Roemen & Schmit v. Luxembourg
ECtHR 25 February 2003
Journalist reported on tax evasion by former Minister
(based on leak ...
Ernst and others v. Belgium
ECtHR 15 July 2003
Leaks in serious criminal cases under investigation
Searches at newsdesks a...
Tillack v. Belgium
ECtHR 27 November 2007
Journalist suspect of having bribed EU civil servant,
investigation breach of pr...
Sanoma Uitg. B.V. v. The Netherlands
Grand Chamber 14 September 2010
The right to protect journalistic sources should be
s...
Nagla v. Latvia
ECtHR 16 July 2013
Search by police / PP for leak within
State Revenue Service (data base)
Confiscation of...
POJS is not absolute !
Nordisk Film A/S v. Denmark
Undercover journalist
Child abuse, pedophaelia
Footages ‘interview’ – n...
Problems
- Journalists are often not aware of being surveilled,
hacked or ‘tapped’
- ‘Invisible’ practices by national Sec...
POJS and liability of journalist
accused of defamation
No misunderstanding:
Right of POJS is by no way a derogation for li...
Article 10 also directly
protects whistle-blowers
Signalling by a civil servant, an employee in the public sector
or and e...
Guja v. Moldova (2008)
Whistleblower case
Mr. Guja = head of communication of Public Prosecutor’s office
He leaked a lette...
Guja v. Moldova
Whistleblower case
Signalling by a civil servant or an employee in the public sector of
illegal conduct or...
Bucur and Toma v. Romania
(8 January 2013)
Employee in military unit of
Romanian Intelligence Services (RIS/SRI).
Bucur di...
However
no violation Article 10
in case of
Grigory Pasko v. Russia (2009)
Military journalist, researcher
Disclosed dumpin...
Grigory Pasko v. Russia (2009)
ECtHR : “as a serving military officer, the
applicant had been bound by an obligation of di...
Europe and the protection of whistleblowers
The reality in most countries in Europe is that under
current law, employees w...
Recommenation CM/Rec(2014)7 of 30 April 2014
on the protection of whistleblowers
8 principles
1. Material scope
“at least”...
Recommenation CM/Rec(2014)7 of 30 April 2014
on the protection of whistleblowers
8 principles
4. The channels for reportin...
Article 10 ECHR and
access to information
New approach by European Court
Access to official documents protected under Article 10
+ effective remedies must exist to ...
TASZ v. Hungary
The State's obligations in matters of freedom of the press include
the elimination of barriers to the exer...
Art. 10 ECHR and FOI :
most recent cases
Youth Initiative for Human Rights v. Serbia
25 June 2013
NGO requested the intell...
Art. 10 ECHR and FOI :
most recent cases
Youth Initiative for Human Rights v. Serbia
ECtHR affirms that the notion of “fre...
Art. 10 ECHR and FOI :
most recent cases
Youth Initiative for Human Rights v. Serbia
ECtHR : NGO can play a role as import...
Art. 10 ECHR and FOI :
most recent cases
Österreichische Vereinigung zur Erhaltung, Stärkung
und Schaffung eines wirtschaf...
Art. 10 ECHR and FOI :
most recent cases
Österreichische Vereinigung zur Erhaltung, Stärkung und
Schaffung eines wirtschaf...
Art. 10 ECHR and FOI :
most recent cases
Österreichische Vereinigung zur Erhaltung, Stärkung und
Schaffung eines wirtschaf...
WOBBING
A challenge for (investigative) journalists !
National law
+ Article 10 extra dimension
Scrutiny ECtHR
Pentikaïnen v. Finland
4 February 2013
Journalist, reporting about demonstration
Denied police order to leave the scene
Ar...
JOURNALISM and the LAW
- AWARENESS (rights and restrictions)
- ASK ASSISTENCE
- USE RIGHTS FoE / FOIA
- REPORT ABOUT IT
- ...
R. Ó FATHAIGH and D. VOORHOOF
“The European Court of Human Rights, Media Freedom and Democracy”
M. PRICE, S. VERHULST and ...
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The Right to Freedom of Expression and Information, Media Freedom and Investigative Journalism under Article 10 of the European Convention on Human Rights

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Dirk Voorhoof | University of Ghent

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  • Violations per article and per respondent State, ECtHR Annual report 2013, p. 202-203, http://www.echr.coe.int/Documents/Annual_report_2013_ENG.pdf
  • Violations per article and per respondent State, ECtHR Annual report 2013, p. 202-203, http://www.echr.coe.int/Documents/Annual_report_2013_ENG.pdf
  • The Right to Freedom of Expression and Information, Media Freedom and Investigative Journalism under Article 10 of the European Convention on Human Rights

    1. 1. Freedom of Expression and Information Media Freedom and Investigative Journalism under the European Human Rights System Prof. dr. Dirk Voorhoof Florence EUI 2 June 2014 www.psw.ugent.be/dv
    2. 2. MIKKELSEN and CHRISTENSEN v. DENMARK 2011 Firework case - Investigative Journalism Documentary about illegal firework in DK
    3. 3. Background/ratio The Firework Act was amended following a dramatic accident that happened at a fireworks factory in Denmark November 2004 (Kolding) - 800 gross tons of fireworks exploded - A fireman died during fire extinguishing operation - 80 civilians injured - 12 industrial buildings destroyed and 355 houses damaged http://www.youtube.com/watch?v=nb8sxJbRakU See also Enschede, the Netherlands 3 May 2000 http://www.youtube.com/watch? v=tew4oHz_Fow
    4. 4. Denmark Fireworks Act, no. 193 of 24 May 1972 Amended by Act no. 1060 of 9 November 2005 Section 2 (1) Fireworks and other pyrotechnical articles may not be transferred, acquired or used without permission from the municipal council … Section 7 (1) Any person who violates section 1, subsection1 or section 2, subsection 1, 2 or 3, or disregards the duty of disclosure under section 4, subsection 2 is liable to punishment by a fine, or in aggravating circumstances, by imprisonment for a term not exceeding two years …
    5. 5. Why journalists claim ‘rights’ to breach the law? (..) UNDERCOVER, HIDDEN CAMERA, FALSE IDENTITY, TRESPASSING, CHECK-IT-OUT, ‘PAYING’ SOURCES, PROCESSING PERSONAL DATA, CONFIDENTIAL or SECRET INFORMATION, HACKING…
    6. 6. What are the limits? What are the conditions to breach the law? “Public interest” : issue important for society No other ways to reveal facts / abuses / illegalities Risk control (for journalists, for others) Must be well prepared, editorial policy/monitoring Proportionate Professional ethics
    7. 7. DR-journalists convicted : criminal offence City Court : Journalists convicted of having acquired and transported illegal fireworks without permission from the municipality Breach of Section 7 of the Fireworks Act Fine 1.000 Euro, each. High Court : the protection of the freedom of expression under Article 10(1) does not imply a general exemption for the applicants as journalists from the duty to observe applicable criminal law provisions Compelling safety considerations Journalists had no permission to acquire and transport the fireworks DR-journalist lodged application in Strasbourg (ECtHR), invoking a breach of their right to news gathering as investigate journalists as protected by Article 10 ECHR
    8. 8. The European Court of Human Rights: fines justified Journalist were not hindered in broadcasting the programme Legislation on fireworks is based on safety considerations Journalists were no certified pyrotechnicians: irresponsable risk Offence in question could have had very serious consequences if the fireworks had detonated by accident during transportation Possibility of purchasing illegal firework could have been demonstrated in another way Unlawful acts, justifying interference by authorities Fine (no imprisonment) Interference, but no violation of Article 10 ECHR
    9. 9. Is the ECtHR neglecting the needs and importance of investigative journalism in this case? How is investigative journalism related to responsible journalism? Shouldn’t the law ultimately serve the interests of society?
    10. 10. What can (investigative) journalists expect from the European Court of Human Rights? What is the impact of the ECHR and of the case law of the ECtHR on journalistic practices in Europe? Is there a European standard of protection for media freedom and journalism?
    11. 11. Towards a European Constitutional Dimension of Freedom of Expression, Media Freedom and Investigative Journalism Five examples
    12. 12. Jersild v. Denmark (1994) Programme ‘Jersild’ - DR Upcoming racism Greenjackets Interviews = hate speech Journalist also convicted ECtHR Violation Art. 10 ECHR Intention Context Interview Format
    13. 13. Özgür Gündem v. Turkey (2000) Journalists of Turkish newspaper Harrased, assaulted, killed Prosecutions, confiscations and convictions ECtHR Violation Article 10 State has positive obligations (art. 2 and 3 ECHR) - to protect journalists against violence - to investigate crimes against journalists + also Gongadze v. Ukraine (2005) and Dink v. Turkey (2010)
    14. 14. Fattulayev v. Azerbaijan (2010) Convicted for defamation, threat of terrorism 8 years and 6 months imprisonment Violation of Article 10 ECHR ECtHR ordered immediate release of journalist sentenced to imprisonment for criticising the government and opposing in his articles certain military operations http://humanrightshouse.org/Articles/16495.html
    15. 15. Mosley v. the UK (2011) ECtHR : No duty of prior notification (Art. 8) Such a duty would amount to a violation of Article 10 A pre-notification requirement would also affect political reporting and serious journalism Risk of chilling effect ! See also Wizerkaniuk v. Poland (2011) : (no) right of prior verification
    16. 16. Axel Springer v. Germany 2012 Articles in BILD about the arrest and conviction of a well known television actor (X.) for the possession of drugs (Der Kommissar) The German courts held that the actor’s right to protection and his personality rights prevailed over the public’s interest in being informed, even if the truth of the facts had not been disputed. An injunction was granted against BILD ECtHR (GC) : violation of Article 10 !
    17. 17. Art. 10 = Freedom of expression without interferences by public authorities Under scrutiny of European Court of Human Rights (ECtHR) + Committee of Ministers (execution) 47 member states included all 27 EU (CJEU - FRA) 48 soon?
    18. 18. The last 35 years, since Sunday Times v. UKSunday Times v. UK (1979), the ECtHR has undoubtedly created an added value to freedom of expression and information, particularly in relation to journalism and media content. ECtHR found 544 violations of Article 10 ECHR
    19. 19. Violations Article 10 ((1959)1979-2013) - Italy, Slovak Rep, The Netherlands 7 - Ukraine 9 - Bulgaria and Greece 10 - Hungary and United Kingdom 11 - Switzerland 13 - Moldova 17 - Finland and Portugal 18 - Poland and Romania 21 - Russia 25 - France 30 Norway 5, Belgium 4, Sweden 2 - Austria 34 Denmark and Iceland 1 - Turkey 224 Source : ECtHR Annual Report 2013, 2014 CAVEAT ! (Albania, Azerbaijan, Spain, B&H, Serbia …)
    20. 20. Article 10 ECHR “Europe’s First Amendment” 10.1. Everyone has the right to freedom of expression Freedom to hold opinions  To express, impart and receive information and ideas   + without interference by public authority + regardless of frontiers.  Licensing system for broadcasting, television/cinema 10.2 Duties and responsibilities         > formalities, conditions, restrictions or penalties  1. Prescribed by law 2. Legitimate aim (..) 3. Necessary in a democratic society
    21. 21. Characteristics of Article 10 ECHR Freedom of expression and information related with/in function of public interest & democracy The public’s right to be properly informed The public watchdog-function of the media Matters of public interest and political speech News gathering protected Journalists have right to be provocative/exaggerate Breach of law can be justified (public interest) Decriminalisation of defamation, no prison sentence Risk of ‘chilling effect’
    22. 22. Article 10 ECHR and media/journalism In principle no interferences by public authorities, including the judiciary! Pertinent and proportional character of interferences must be demonstrated – pressing social need / necessary in a democracy - Total lack of factual basis of allegations / defamation - Intrusion of privacy, without public interest - Incitement to violence / ‘hate speech’ / terrorism
    23. 23. ECtHR does not want to protect idle gossip about the privacy of persons or celebrities merely serving to satisfy the curiosity of a certain readership and not contributing to any public debate in which the press has to fulfil its role of “public watchdog” But high level of protection of freedom of political speech, investigative journalism and journalistic reporting about matters of public interest
    24. 24. Examples of “public watchdog”-function Thorgeir Thorgeirson v. Iceland  Article in newspaper ‘members of police units Reykjavik = wild beasts in uniform’ Intention was investigation into alleged violent behaviour of some metropolitan police units Clear matter of public interest Conviction because of defamation was not necessary in a democratic society Violation of Article 10
    25. 25. Fressoz & Roire v. France Publication of tax files In principle journalists are not above the law, but … the interest of the public can be more important than enforcement of criminal law Case showed that conviction of journalists for breach of professional secrecy and using illegaly obtained document was a violation of their freedom of expression Violation of Article 10
    26. 26. Bladet Tromsø and Stensaas v. Norway  Article in newspaper revealing that crew members of vessel were involved in illegal seal hunting Intention was to instigate further investigation into illegal activities of seal hunting. Allegations relied on leaked, unfinished secret report and concerned a clear matter of public interest In such circumstances priority is to be given to freedom of expression and the right of the public to be informed about these matters Conviction because of defamation was not necessary in a democratic society Violation of Article 10
    27. 27. Radio Twist v. Slovakia  Broadcasting of illegally recorded tapes of conversation between State Secretary at the Ministry of Justice and the Deputy Prime Minister Integrated in radio programme as evidence of political dispute and struggle about the privatisation of a major national insurrance provider No indication that the journalists acted in bad faith or that they pursued any objective other than reporting on matters which they felt obliged to make available to the public Again conviction was not necessary in a democracy Violation of Article 10
    28. 28. New dimensions Broadening the scope of Article 10  Relevance for investigative journalism 1. Protection of journalistic sources 2. Whistle blowing 3. Access to information
    29. 29. Protection of sources under umbrella of freedom of expression? Article 10 ECHR contains no reference to freedom to seek information, no reference to protection of journalistic sources Situation in European countries is very different, practice  shows very often no or only low level of legal POJS …
    30. 30. European Court 27 March 1996 Goodwin v. UK Protection of sources is basic condition for press freedom  “Without such protection sources may be deterred from assisting the press in informing the public on matters of public interest” Article 10 guarantees journalists a right to refuse to reveal  their sources, unless there is “an overriding requirement in the public interest” Judicial order to reveal the journalist’s source in casu  was  breach of Article 10 Convention
    31. 31. 1/ Goodwin v. UK 27 March 1996 2/ Roemen and Schmit v. Luxembourg 25 February 2003 3/ Ernst and others v. Belgium 15 July 2003 4/ Voskuil v. Netherlands 22 November 2007 5/ Tillack v. Belgium 27 November 2007 6/ Financial Times v. UK 15 December 2009 Case law POJS 7/ Sanoma Uitg. B.V. t. The Neth. GC 14 September 2010 8/ Martin ao v. France 12 April 2012 9/ Ressiot ao v. France 28 June 2012 10/ Telegraaf (..) v. the Netherlands 22 November 2012 11/ St Paul Luxembourg SA v. Lux. 18 April 2013 12/ Nagla v. Latvia 16 juli 2013
    32. 32. Roemen & Schmit v. Luxembourg ECtHR 25 February 2003 Journalist reported on tax evasion by former Minister (based on leak within tax administration) ECtHR : Searches even greater treath to freedom of  expression of journalists than an order to reveal  information. Violation of Article 10 (Journalist) Violation of Article 8 (Lawyer)
    33. 33. Ernst and others v. Belgium ECtHR 15 July 2003 Leaks in serious criminal cases under investigation Searches at newsdesks and in head offices of Le Soir, Le Soir Illustré, RTBF Searches in private homes of journalists “Fishing operation” Violation Article 10
    34. 34. Tillack v. Belgium ECtHR 27 November 2007 Journalist suspect of having bribed EU civil servant, investigation breach of professional secrecy (OLAF) Searches and confiscation (pc, documents, mobile) A journalist’s right not to reveal her or his sources could not be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution. Action against journalist based on vague rumours. Searches/confiscation: disproportionate measures. Violation Article 10
    35. 35. Sanoma Uitg. B.V. v. The Netherlands Grand Chamber 14 September 2010 The right to protect journalistic sources should be safeguarded by sufficient procedural guarantees, including the guarantee of an ex ante review by a judge or other independent and impartial decision- making body, before the police or the public prosecutor have access to information capable of revealing such sources. Violation Article 10
    36. 36. Nagla v. Latvia ECtHR 16 July 2013 Search by police / PP for leak within State Revenue Service (data base) Confiscation of PC, hard disk, flash drives A chilling effect will arise wherever journalists are seen to assist in the identification of anonymous sources. The search warrant was drafted in such vague terms as to allow the seizure of “any information” pertaining to the crime under investigation allegedly committed by the journalist’s source. Violation Article 10
    37. 37. POJS is not absolute ! Nordisk Film A/S v. Denmark Undercover journalist Child abuse, pedophaelia Footages ‘interview’ – no ‘sources’ Art. 3 ECHR Major crime
    38. 38. Problems - Journalists are often not aware of being surveilled, hacked or ‘tapped’ - ‘Invisible’ practices by national Security and Intelligence Agencies + lack of judicial review - Practices by NSA + secret contacts with national authorities and IT-firms in Europe
    39. 39. POJS and liability of journalist accused of defamation No misunderstanding: Right of POJS is by no way a derogation for liability in defamation case If journalist is sued in court and has no reliable evidence for allegations he/she risks to be convicted or held liable for defamation - it is no sufficient defence referring to an anonymous source - journalist can not shield him/her self behind a non identified source in order to escape liability But court should accept any other evidence or factual basis in support of the allegations published by a journalist Aim remains protecting whistleblowers POJS is not a shield to escape from liability as a journalist
    40. 40. Article 10 also directly protects whistle-blowers Signalling by a civil servant, an employee in the public sector or and employee in the private sector of illegal conduct or wrongdoing in the workplace is protected under freedom of expression Guja v. Moldova (GC) 12 February 2008 (PP office press officer) Kayasu v. Turkey 13 November 2008 (PP) Frankowicz v. Poland 16 December 2008 (doctor) Marchenko v. Ukraine, 19 February 2009 (teacher, trade unionist) Kudeshkina v. Russia 26 February 2011 (judge) Heinisch v. Germany, 21 July 2011 (geriatric nurse) Sosinowska v. Poland, 18 October 2011 (doctor) Bucur and Toma v. Romania, 8 January 2013 (military unit RIS)
    41. 41. Guja v. Moldova (2008) Whistleblower case Mr. Guja = head of communication of Public Prosecutor’s office He leaked a letter to the media Letter gave evidence of influence by a Minister on Public Prosecutor and administration of justice in a corruption case Mr. Guja was dismissed because of breach of duty of professional secrecy QUESTION Can ‘whistleblower’ invoke freedom of expression If NO: why not? If YES: under which conditions/criteria?
    42. 42. Guja v. Moldova Whistleblower case Signalling by a civil servant or an employee in the public sector of illegal conduct or wrongdoing in the workplace is protected under freedom of expression. Conditions/criteria? 1. No alternative channels for the disclosure (+ effective + protection of whistleblower) 2. Public interest in the disclosed information 3. The authenticity of the disclosed information (+ accurate/reliable) 4. Justifiable damage to employer/administration 5. Whether the applicant acted in good faith (motif = public interest) 6. The severity of the sanction (+ consequences)
    43. 43. Bucur and Toma v. Romania (8 January 2013) Employee in military unit of Romanian Intelligence Services (RIS/SRI). Bucur disclosed serious irregularities of telephone tapping of journalists and politicians by SRI Two year suspended prison sentence ECtHR: violation Article 10
    44. 44. However no violation Article 10 in case of Grigory Pasko v. Russia (2009) Military journalist, researcher Disclosed dumping nuclear waste by Russian Navy Found in possession of classified information in airport Convicted for treason through espionage for having collected secret information with the intention of transferring it to a foreign national. Four years in prison.
    45. 45. Grigory Pasko v. Russia (2009) ECtHR : “as a serving military officer, the applicant had been bound by an obligation of discretion in relation to anything concerning the performance of his duties” “Right balance of proportionality between the aim to protect national security and the means used for that, namely the sentencing of the applicant to a lenient sentence, much lower than the minimum stipulated in law”. Manning and Snowden protected under Article 10 ECHR? Evolution case law: Pasko 2009 and Bucur and Toma 2013?
    46. 46. Europe and the protection of whistleblowers The reality in most countries in Europe is that under current law, employees who engage in effective whistleblowing have no legal protections from a retaliatory termination of their employment (+ risk criminal prosecution) http://www.whistleblower.org/storage/documents/TheCurrentStateofWhistleblowerLawinEurope.pdf Council of Europe : PACE requests for action - Resolution 1729(2010) Recommenation CM/Rec(2014)7 of 30 April 2014 https://wcd.coe.int/ViewDoc.jsp? Ref=CM/Rec(2014)7&Language=lanEnglish&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=E DB021&BackColorLogged=F5D383
    47. 47. Recommenation CM/Rec(2014)7 of 30 April 2014 on the protection of whistleblowers 8 principles 1. Material scope “at least” include violations of law and human rights, as well as risks to public health and safety and to the environment. 2. Personal scope Private - public 3. Normative framework Stimulate + effective procedures
    48. 48. Recommenation CM/Rec(2014)7 of 30 April 2014 on the protection of whistleblowers 8 principles 4. The channels for reporting and disclosures: - reports within an organisation or enterprise (..); - reports to relevant public regulatory bodies, law enforcement agencies and supervisory bodies; - disclosures to the public, for example to a journalist or a member of parliament. (..) Confidentiality/anonymity; protection against retaliation; promoting, facilitating, assessments…
    49. 49. Article 10 ECHR and access to information
    50. 50. New approach by European Court Access to official documents protected under Article 10 + effective remedies must exist to enforce this right TASZ v. Hungary (2009) access to official documents refused TASZ = Hungarian Civil Liberties Union Kenedi v. Hungary (2009) access refused to archives regarding functioning in the past of secret police and secret services In both cases violation of Article 10 ECHR
    51. 51. TASZ v. Hungary The State's obligations in matters of freedom of the press include the elimination of barriers to the exercise of press functions where, in issues of public interest, such barriers exist solely because of an information monopoly held by the authorities. The function of the press includes the creation of forums for public debate. The realisation of this function is not limited to the media or professional journalists (also other forums, NGO’s, …)
    52. 52. Art. 10 ECHR and FOI : most recent cases Youth Initiative for Human Rights v. Serbia 25 June 2013 NGO requested the intelligence agency of Serbia to provide it with some factual information concerning the use of electronic surveillance measures by that agency. Agency refused. After an order by the Information Commissioner that the information at issue should be disclosed under the Serbian Freedom of Information Act 2004, the intelligence agency notified the applicant NGO that it did not hold the requested information.
    53. 53. Art. 10 ECHR and FOI : most recent cases Youth Initiative for Human Rights v. Serbia ECtHR affirms that the notion of “freedom to receive information” embraces a right of access to information. The refusal to give access to public documents did not meet the criterion as being prescribed by law. The Court comes to the conclusion that the “obstinate reluctance of the intelligence agency of Serbia to comply with the order of the Information Commissioner” was in defiance of domestic law and tantamount to arbitrariness, and that accordingly there has been a violation of Article 10 of the Convention.
    54. 54. Art. 10 ECHR and FOI : most recent cases Youth Initiative for Human Rights v. Serbia ECtHR : NGO can play a role as important as that of the press in a democratic society Refusal was violation Article 10 Court ordered the Serbian State to ensure, within three months the intelligence agency of Serbia to provide the applicant NGO with the information requested !!
    55. 55. Art. 10 ECHR and FOI : most recent cases Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt-schaftlichen Grundbesitzes v. Austria 28 November 2013 NGO, the Austrian association for the preservation, strengthening and creation of an economically sound agricultural and forestry land ownership (OVESSG) was refused access to decisions of Commission responsible for approving agricultural and forest land transactions. Argument : would require so many resources that the Commission functioning would be affected and would jeopardise the fulfilment of the Commission’s other tasks
    56. 56. Art. 10 ECHR and FOI : most recent cases Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt- schaftlichen Grundbesitzes v. Austria, 28 November 2013 Refusal to give OVESSG access to the requested documents amounted to an interference with its rights under Article 10, as the association was involved in the legitimate gathering of information of public interest with the aim of contributing to public debate. The Court refers to its case-law stating that the most careful scrutiny was called for when authorities enjoying an information monopoly interfered with the exercise of the function of a social watchdog
    57. 57. Art. 10 ECHR and FOI : most recent cases Österreichische Vereinigung zur Erhaltung, Stärkung und Schaffung eines wirtschaftlich gesunden land- und forstwirt- schaftlichen Grundbesitzes v. Austria, 28 November 2013 Commission had not given sufficient reasons to justify its refusal to grant OVESSG access to the requested documents. It had chosen not to publish its decisions and thus, by its own choice, held an information monopoly. The unconditional refusal by the Commission thus made it impossible for OVESSG to carry out its research and to participate in a meaningful manner in the legislative process concerning amendments of real property transaction law in Tyrol. Violation Article 10
    58. 58. WOBBING A challenge for (investigative) journalists ! National law + Article 10 extra dimension Scrutiny ECtHR
    59. 59. Pentikaïnen v. Finland 4 February 2013 Journalist, reporting about demonstration Denied police order to leave the scene Arrested, detained 17 hours, prosecuted and convicted (no sanction) ECtHR : no violation Article 10 Media as watchdog? Facilities for embedded journalism sufficient? Case referred to Grand Chamber Support + IJF/EJF – 3 May 2014 Panel 2 June 2014 ! http://www.ifj.org/nc/news-single-view/backpid/66/category/europe-1/article/countdown-to-wpfd-2014-request-for-hearing-for-finnish-journalist-pentikaeinen/
    60. 60. JOURNALISM and the LAW - AWARENESS (rights and restrictions) - ASK ASSISTENCE - USE RIGHTS FoE / FOIA - REPORT ABOUT IT - ADVOCATE - COME UP FOR YOUR RIGHTS - YOU’RE NOT ALONE - MEDIA = TOOL - DON’t GIVE UP TOO FAST … (Jersild, Fattulayev, Bucur … Pentikäinen.)
    61. 61. R. Ó FATHAIGH and D. VOORHOOF “The European Court of Human Rights, Media Freedom and Democracy” M. PRICE, S. VERHULST and L. MORGAN (eds.), Routledge Handbook of Media Law, New York, Routledge, 2013, 107-124. D. VOORHOOF “The protection of journalists’ sources under fire? How Developments in European Human Rights Law have Reinforced the Right of Journalists to have their Sources Protected”, EFJ-website, September 2012, http://europe.ifj.org/assets/docs/147/154/9355293-0d86c9a.pdf Iris Newsletter - http://merlin.obs.coe.int/newsletter.php D. VOORHOOF, Freedom of Expression, the Media and Journalists. Case law of the European Court of Human Rights, Strasbourg, European Audiovisual Observatory, Iris, 2013, with T. Mc Gonagle (ed.), 404 p., E-Book. http://www.obs.coe.int/documents/205595/2667238/IRIS+Themes+III+ (final+9+December+2013).pdf/2e748bd5-7108-4ea7-baa6-59332f885418

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