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Dr. Carmen Draghici Senior Lecturer , The City Law School

OBSTACLES TO FREE SPEECH AND THE SAFETY OF JOURNALISTS 3 May 2013 Individual Torts and Collective Victims : The Societal Impact of Crimes Against Journalists in International Case Law. Dr. Carmen Draghici Senior Lecturer , The City Law School.

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Dr. Carmen Draghici Senior Lecturer , The City Law School

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  1. OBSTACLES TO FREE SPEECH AND THE SAFETY OF JOURNALISTS3 May 2013IndividualTorts and CollectiveVictims: The Societal Impact ofCrimesAgainstJournalists in International Case Law Dr. Carmen Draghici Senior Lecturer, The City LawSchool

  2. Direct and indirectattacksagainstfreedomofexpression Potential breaches of international free speech guarantees • Direct attacks: act-focused • Suppression of journalistic output prior censorship, seizure of material, injunction against publication etc. • Interference with journalistic tools search of premises, pressure to disclose confidential sources etc. • Indirect attacks: agent-focused • Threat/use of physical violence against the person of the journalist by the authorities or with the authorities’ connivance • No immediate connection with one particular act of speech

  3. (1) Directattacksagainstfreedomofexpression 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)

  4. Directattacksagainstfreedomofexpression (cont’d) • Disproportionate defamation laws Castells v Spain (1992) BergensTidende v Norway (2000) Prager and Oberschlick v Austria (1995) See also other regional systems: • Inter-American system Verbitsky v Argentina (1994) Kimel v Argentina (2008) • African system Declaration of Principles on Freedom of Expression in Africa (2002)

  5. (1) Directattacksagainstfreedomofexpression • Unlawful searches of home/ work premises and seizure of material Roemen and Schmitt v. Luxembourg (2003) Ernst v. Belgium(2003) Tillack v. Belgium(2007)

  6. Directattacksagainstfreedomofexpression (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 Rights Steve Clark v Grenada (1996) Alejandra Marcela MatusAcuña et Al. (2005) Ivcher Bronstein v Peru (2001) • African Commission on Human and Peoples’ Rights Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe/ Zimbabwe (2009)

  7. (2) Indirectattacksagainstfreedomofexpression No recognition of indirect violations of freedom of expression In 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

  8. Indirectattacksagainstfreedomofexpression (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

  9. Indirectattacksagainstfreedomofexpression (cont’d) Dinkv Turkey (2010) Murder of Armenian journalist militating for recognition of the genocide against Armenians Criminal proceedings for denigration of Turkish identity Assassinated ECtHR: Turkish security forces aware of hostility towards Dink in nationalist circles and of the planned assassination Failure to protect his life in the face of a real and imminent threat Violation of Art. 2 • Violation of Art. 10 only in respect of criminal proceedings

  10. Indirectattacksagainstfreedomofexpression (cont’d) • Contrast with Inter-American jurisprudence: Hugo BustiosSaavedra 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]

  11. Are attacksagainstjournalists 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

  12. Are attacksagainstjournalists private violations? (a) Right of the public to receive information Free speech: imparting and receiving information Dual – active and passive – nature: Article 19 UDHR: “freedomof opinion and expression […] includesfreedomtoholdopinionswithout interference and toseek, receiveand impart information and ideas” Seealso: Article 10 (1) European Convention on HumanRights Article 19 (2) International Covenant on Civil and PoliticalRights Article 13 (1) Inter-American Convention on HumanRights Article 9 African Charter on Human and Peoples’ Rights

  13. Are attacksagainstjournalists private violations? Right of the public to receive information (cont’d) • HumanRightsCommittee Mavlonovet al. v Uzbekistan (2009) “public alsohas a corresponding right toreceive media output”

  14. Are attacksagainstjournalists 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 DublinWell Woman v. Ireland (1992) information on pregnancyterminationfacilitiesabroad KhurshidMustafa and Tarzibachi v. Sweden (2008) satellite dish enabling immigrant family to receive information from country of origin

  15. Are attacksagainstjournalists 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 Advisoryopinion on compulsorymembership in anassociationfor the practiceofjournalism(1985) “whenanindividual’s freedomofexpressionisunlawfullyrestricted, itisnotonly the right ofthatindividualthatisbeingviolated, butalso the right ofallothersto “receive” information and ideas” • Inter-American Commission on HumanRights Steve Clark v. Grenada (1996) “two-foldaspectsof the right toreceive and impart information” AlejandraMarcelaMatusAcuñaet al. v Chile (2005) “society wasdeprivedofits right toaccessto information and opinion” Marcel Claude Reyes v Chile (2006) self-standing right tofreedomof information

  16. Are attacksagainstjournalists 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 toreceiveany information”

  17. Are attacksagainstjournalists 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) Mavlonovet al v Uzbekistan (2009)

  18. Are attacksagainstjournalists private violations? (b) Public watchdog of democracy • European Court of Human Rights Lingens v Austria (1986) Castells v Spain(1992)

  19. Are attacksagainstjournalists private violations? (b) Public watchdog of democracy • AfricanCommission 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”

  20. Are attacksagainstjournalists private violations? (b) Public watchdog of democracy • Essentialpre-conditionfor the effectivenessof the right to vote • Human Rights Committee General 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 RicardoCanese v Paraguay (2004) freedomofexpression - cornerstonefordebateduring the electoralprocess

  21. Are attacksagainstjournalists private violations? Becauseof the public’s rightstoreceive and the watchdogfunctionof 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

  22. Concludingremarks • Insufficientrecognitionofprofessionally-motivatedattacksagainst the personofjournalistsasattacks on freedomofexpression • Crimesagainst free speech vs crimesagainst the personofjournalists:anacceptabledichotomy? • Deprivationof life – the mostextremeformofcensorship – chillingeffect • Flagging up the collectiveramificationsofindividualviolations in judgmentsmaypromptfurtherenforcement • Options: aggravatedviolationsofindividualrights, wheremotivatedby media role separate violations • Isthis a problemofenforcementexclusively, or are furtherlegalprovisionsrequired?

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