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Module 9: Le journalisme et la presse libre

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Cadre pour une presse libre

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Framework for a Free Press

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Essential rights

The liberty of the press is essential to the nature of a free state.

A useful starting point as we set out to create a framework for a free press is to consider what rights are essential in order for journalists to do their jobs. These might include the following:

• No prior restraint
• Protection from compelled disclosure of information
• The right of access to government information and court proceedings
• The right to criticize government officials and public figures
• The right to gather and publish newsworthy information about individuals
• Limits on government licensing of journalists and news organizations
• Narrow and carefully tailored restrictions on indecent or obscene speech
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Security

Technological innovations have made it easier than ever to engage in news gathering and content dissemination.

Today, anyone producing journalism can face risks. Digital security and operational security concerns will increase in importance as lines increasingly blur between online and offline activity.

Risk

Wherever it takes place, journalism often involves enormous risk to those producing it and their sources, particularly where its output challenges power or brings to light information that other actors seek to conceal.

Those who practice journalism may attract attacks because of the important role they play, and it is because of this role that they also particularly merit protection. They need to be safe and free to provide opportunities for the expression of opinions and information, monitor and shed light on government and corporate operations, and encourage accountability.

Proper Restraints

Proper Restraints

Proper Restraints

Justifications

Justifications

Limits

Limits

New Media

New Media

Framework for a Free Press

No Prior Restraint

The 18th-century English jurist William Blackstone argued, “The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.”

This was an important distinction.

The government’s power to license, to control both who could operate a press and what he could publish, was the quintessential abridgement of free expression. By stopping speech before it is uttered, government stifles discussion and dissent.

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New Media

The Internet and new media pose a significant obstacle to the effective imposition of a prior restraint. An example is the Wikileaks case. In February 2008, a US federal judge issued a permanent injunction against Wikileaks.

Wikileaks allowed users to publish anonymously a wide variety of documents, such as rules of engagement for American troops, and confidential Swiss bank account information. Even after the restrictions on the site, users worldwide could still reach it and read the documents by accessing mirror sites.

Two weeks after the initial injunction had been issued, the same federal judge lifted it. “It is clear that in all but the most exceptional circumstances, an injunction restricting speech is impermissible.”

Limits

Given the limits of territorial jurisdiction, it has always been challenging for the government of a particular country to impose a restraint that will be truly effective worldwide.

In the late 1980s, the British government’s attempts to restrict the publication of Spycatcher, a former MI5 agent’s memoirs, were ultimately futile. While an English court did ban publication, the book circulated widely in Australia, and even in Scotland, a part of Great Britain not covered by the writ of the English court. Copies poured into England from these and other jurisdictions. Eventually the English courts were forced to lift their ban on the grounds that publication elsewhere meant there no longer were any secrets left to preserve.


Justifications

What types of interests might be sufficiently compelling to justify a prior restraint? Such interests could include, among others:

• Confidential or proprietary business information
• Highly intimate personal information
• Copyrighted material
• Information pertaining to an on-going criminal investigation or prosecution
• Obscene or immoral material

But probably the most frequently invoked justification is national security.

Proper Restraints

There are a number of types of restraints that are recognized as lawful in many countries. Below are the circumstances under which a prior restraint might be considered proper:

• A compelling interest should be identified
• The order should be narrowly tailored in scope
• The order should be as precise in its terms as possible
• The order will advance the compelling interest or avert the identified harm
• Notice of the order and an opportunity to be heard to contest it should be provided prior to imposition

They must also be able to protect the fruits of their news gathering from scrutiny by government or private entities in order to maintain their editorial independence.

Framework for a Free Press

Compelled Disclosure

The right of a journalist to protect confidential sources and unpublished information from disclosure is essential to promoting both the free flow of information and the public’s right to know.

Reporters must be able to assure their sources that their identities will remain secret in order to encourage them to speak freely and honestly.

Confidentiality

Confidentiality

Privilege

Privilege

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Journalist’s Privilege

In some countries, the journalist’s privilege is included in the constitution. For example, the Constitution of Palau says, “No bona fide reporter may be required by the government to divulge or be jailed for refusal to divulge information obtained in the course of a professional investigation.”

Sweden’s Freedom of the Press Act, which is part of the national constitution, provides an expansive privilege for journalists, subject only to a limited number of exceptions, such as if the source is suspected of espionage or treason, or if an accused person demonstrates that the information sought is essential for her defense in a criminal case. The law also provides that a journalist who reveals a source without consent may be prosecuted.

Confidentiality

Without these privileges, the ability of the press to scrutinize government and to uncover corruption would be severely compromised.

Most media codes of ethics require that journalists protect the confidentiality of their sources. For a reporter, this is both a matter of honor and a pragmatic necessity.

A journalist who violates a promise of confidentiality will not be trusted by other sources in the future. For this reason, journalists will protect their sources, even if it means facing contempt of court.

Framework for a Free Press

Compelled Disclosure

Although each society will work out the precise contours of journalistic privilege against compelled disclosure of information, an effective privilege would supply broad answers to the following questions:

• To whom does it apply?
• Is it limited by media platform?
• Which sources does it protect?
In the absence of an absolute privilege, one who seeks to compel a journalist to reveal confidential sources and information should be required to show good cause.

Standards

Standards

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Common Standards

Nations have devised different standards, but the more common include:

• The information is unobtainable from any other nonjournalistic source after all reasonable alternatives have been exhausted

• The information sought is material, or absolutely essential, to the disposition of the underlying case (such as exonerating evidence for an accused criminal)

• A judge must find that the public interest in disclosure outweighs the public interest in the free flow of information



Framework for a Free Press

Right of Access

Why is the right of access to government proceedings and information important?

• Access helps keep governments accountable to its citizens
• Access allows the public to tap into the vast quantities of collected information
• Journalists can obtain public records to report on government actions

In short, journalists’ access to government information is an essential tool for building and maintaining democracy. Individual nations decide whether and how they will implement these right of access principles. The journalist who sets out to exercise her right to know may find the experience a challenging one.

Freedom of information is a constitutional right in about eighty countries, but most countries have found a right of access to information implicit in the right of freedom of the press or expression.

FOI Laws

FOI Laws

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Freedom of Information Laws

Most freedom of information laws share common principles and characteristics. Many recent examples were influenced by the U.S. federal Freedom of Information Act (FOIA).

Despite its name, the statute does not actually create a right of access to information. Rather, it establishes a presumptive right of access to existing records, held by executive branch agencies, departments, regulatory commissions, and government controlled corporations.

Framework for a Free Press

Right to Criticize

Libel

Libel

Journalists report on the activities of government officials and public figures. But, ironically, the more prominent and powerful the individual, the more they may object to criticism.

During the course of their careers, many reporters find themselves facing a lawsuit, accusing them of having falsely defamed an individual.

Libel is defined as a false and defamatory statement made to a third party about another individual, with the potential to harm the subject’s reputation.

Fair Report

Fair Report

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Fair Report

Journalists possess a variety of privileges and defenses against libel claims, even those of non-public figures. Truth, of course, is an absolute defense to libel. The fair report privilege permits reporters to republish without liability, government documents, including court filings, that contain libelous allegations, as long as the report of their contents is accurate.

Fair comment permits good-faith criticism of individuals involved in matters of public concern, provided it is based on facts that are truthfully stated. And, as a matter of US First Amendment law, the Court has held that pure opinion-statement that can neither be proven true nor false, is absolutely protected.



Libel

Because the right to reputation is regarded as an important, though not a necessarily fundamental right, international conventions and treaties generally do not reject libel suits as necessarily violating the right of freedom of expression and the public’s right to know.

In cases involving private individuals (not public officials or public figures) in the US, the Court permits each state to establish the requisite standard. It acknowledges a legitimate interest in affording individuals the opportunity to be compensated when falsehoods harm their reputations. The Supreme Court requires at a minimum that a plaintiff prove publisher negligence, a standard that affords journalists some leeway for good-faith errors.

FCC

FCC

FCC

Issues

Issues

Indecent Speech

Indecent Speech

Regulation

Regulation

Framework for a Free Press

Government Regulation

In many jurisdictions, the government’s power to regulate content differs between print and broadcast media.

In the United States, the First Amendment is held to prohibit any government licensing of newspapers and magazines, but the Federal Communications Commission (FCC) has exclusive authority to license use of the electromagnetic spectrum, which is regarded as a scarce public resource.

U.S. law also authorizes FCC control over some aspects of broadcast station ownership. It may prohibit the concentration of many outlets in the hands of a single entity or limit cross-ownership, where one company controls multiple media platforms in a single market.

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Regulation

Vaguely worded laws may proscribe indecent or obscene material without defining it, or they may lack qualifying language. In these situations, journalists may run afoul of the laws if they publish sexually explicit, but newsworthy, material. Or the laws may be used as a pretext to censor other material.

The best approach to regulating obscenity is a focused one. Laws should define with precision what is being banned. That way, all parties are on notice of what is impermissible. Laws should distinguish materials that are offensive but not demonstrably harmful. Content that has redeeming social, political, scientific, or artistic value should be protected.

Indecent or Obscene Speech

In most countries, publishing or distributing obscene materials is a criminal offense. Prior restraints on their distribution are often considered constitutional. However, national and international freedom of expression guarantees, generally protect the access rights of consenting adults, except for certain specific categories.

In mature democracies, obscenity laws usually raise no significant concerns for mainstream news organizations. But in some countries, outdated statutes still recognize offenses like “conspiracy to corrupt public morals”.

Issues

Taxation, presents issues. Tax laws that apply to all for-profit corporations are generally acceptable, while those singling out the news media for special obligations are often deemed, unconstitutional prior restraints on speech.

By the same token, restrictions on the international circulation of news media products violate both Article 10 of the European Convention on Human Rights and Article 19 of the International Covenant on Civil and Political Rights, which guarantee, the free flow of information and ideas “regardless of frontiers.”

FCC

The FCC’s jurisdiction over broadcasters’ content decisions is subject to the US First Amendment, and in recent years has been limited primarily to regulating indecency and to requiring broadcasters to provide equal opportunities for opposing candidates for public office to appear on the air¬waves during the period immediately preceding an election.

The fairness doctrine, which required broadcast licensees to report on controversial issues of public importance in their communities and to provide responsible representatives of opposing views a reasonable opportunity to reply, was repealed by the FCC in 1987.

Framework for a Free Press

Licensing of Journalists

Licensing Schemes

Licensing Schemes

Mandatory licensing of reporters has been justified as a means of ensuring that only qualified individuals engage in journalism and of keeping professional standards high.

Some international organizations have advocated licensing, to protect journalists, from government harassment or harm.

But when a government asserts authority to determine who can and cannot cover the news, it claims a license to censor.

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Licensing Schemes

The lack of a license can provide the pretext for arresting journalists or expelling them from a country, and regimes can arbitrarily withhold licenses from reporters whose work they wish to suppress.

As the 1980 International Commission for the Study of Communication Problems, also known as the MacBride Commission report to UNESCO, concluded;

“Licensing schemes might well lead to restrictive regulations governing the conduct of journalists; in effect, protection would be granted only to those journalists who had earned official approval.”

Framework for a Free Press

Privacy Rights

Privacy rights are enshrined in a number of international legal documents. Article 17 of the International Covenant on Civil and Political Rights says:

“No one shall be subjected to arbitrary or unlawful interference with privacy, family, home or correspondence.”

Privacy rights issues, most commonly arise in the context of news gathering. It includes not only physical trespass into another’s private space but also eavesdropping, tape recording, or otherwise intercepting private conversations without permission.

Dilemma

Dilemma

Privacy Torts

Privacy Torts

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Privacy Torts

The American legal scholar, William Prosser, identified four distinct privacy torts, (a civil wrong that causes someone else to suffer loss or harm):

• Intrusion on seclusion
• Publication of private facts
• Depiction of another in a false light
• Misappropriation or commercial use of another’s name or image

Some arise from common law. Others are statutory. Not every jurisdiction recognizes all four torts. But each is designed to provide a remedy to an individual, based not on his external reputation, as in libel, but on his own sense of violation of self. Many countries recognize some or all of them.

Dilemma

The publication of a private fact tort (a civil wrong that causes someone else to suffer loss or harm, leading to legal liability), presents a free-expression dilemma because it permits legal action to be brought against journalists who have published the truth.

Nevertheless, many countries recognize some version of this tort. The United States construes it narrowly, limiting actions to publication of intimate facts highly offensive to a reasonable person and of no legitimate public concern. A public figure or public official will probably be held to have a diminished expectation of privacy. The challenge for any journalist is to determine whether a court would deem a particular fact newsworthy.