Protecting journalists from attacks under international law, by William Horsley
The full speech at the internaqtional conference held in Roma on July 2nd, 2015, promoted by Ossigeno and The European Center For Press and Media Freedom (ECPMF)
Here is the full text of the report by William Horsley at the international conference “Protecting Journalists, knowing inconvenient truths”, which was held in Rome on July 2nd, 2015 following the initiative by Ossigeno per l’Informazion and the European Center for Press and Media Freedom of Leipzig (ECPMF). The work can be read in English at this link. The video is also available at these links in Italian and English. Experienced journalist, vice president of the Association of European Journalists (AJE), director of the International Center for Media Freedom (CFOM) of the University of Sheffield in the United Kingdom, William Horsley has also worked for the BBC. He then became one of the leading European experts on the duties of the state for the legal protection of freedom of information and journalists. Among other things, he is the author of the fundamental handbook entitled “Safety of Journalists”, published by the OSCE in English and in Russian, and now at its second edition.
by William Horsley – I sincerely thank the Italian Senate and organisers of this conference, and applaud Ossigeno and its partners for their extremely important work. I represent the Association of European Journalists (AEJ), an independent organisation of journalists active in Italy and across Europe; the AEJ works closely with the Council of Europe and others to strengthen protections for journalists. And I am a director and co-founder of the Centre for Freedom of the Media (CFOM) at the University of Sheffield. CFOM is a partner organisation of the UN Agency UNESCO in seeking to implement the United Nations’ Inter-Agency Plan of Action on the Safety of Journalists and the Issue of Impunity. Before that I worked as a foreign correspondent for the BBC for many years.
In international law, national governments bear responsibility for upholding media freedom and the universal right of freedom of expression. I will focus my remarks on the search for solutions and remedies, with some practical suggestions to lawmakers and others here today.
I welcome the willingness of Italian lawmakers, especially in Parliament’s Anti-Mafia Committee, to work with Ossigeno and others to seek solutions to the acute problems of violence, intimidation and self-censorship in this country. I commend the Italian police for providing close protection to as many as 30 Italian journalists who have received serious threats to their lives from organised crime syndicates. But the only acceptable solution is to eliminate the source of those threats by determined state action.
In many other parts of Europe, too, intimidation and restrictions are stifling free and independent media. The annual Report about the State of Human Rights in Europe by the Secretary-General of the Council of Europe, published in May, concluded that protections for human rights are now weaker than they have ever been since the end of the Cold War. And there are two main symptoms of that decline: the decline of media freedom, and the lack of judicial independence.
That Council of Europe report found that genuine media independence exists in only one quarter of the countries of Europe; and protections against arbitrary application of the law are working well in less than 40 percent of European states. Today journalists are in pre-trial detention for long periods or wrongly sentenced to long jail terms in Azerbaijan, Turkey and elsewhere.
A lack of adequate freedom of information laws and abuse of defamation laws, the report found, are among the most serious problems. And the Commissioner for Human Rights of the Council of Europe recently reported that more than half of the injuries suffered by journalists in the course of their work were inflicted by police.
The most shocking reality of all is the chronic weakness in systems of justice; especially the grim fact that the great majority of attacks and murders of journalists regularly go unpunished. That disastrous failure has led in some parts of Europe to a climate of impunity which undermines democracy and results in a loss of public trust in the institutions of the state.
How have things been allowed to go so badly wrong? The honest answer is that governments have been unwilling to recognise the scale of the problem and to take remedial action.
The AEJ and others have argued for several years that new, practical mechanisms are necessary among the Council of Europe’s 47 member states to ensure that serious violations of freedom of expression and attacks against journalists are identified, reported and corrected, without waiting for some of those cases to be judged by the European Court of Human Rights.
In the past all such appeals were consistently refused. The states of Europe excused themselves, saying it would be too difficult politically. Even proposals for the Council of Europe to carry out formal monitoring of attacks on journalists were refused. But now at last there are signs of progress which must be supported.
Promising initiatives in Europe
Firstly, in April this year, thanks to pressure from NGOs and from members of the Parliamentary Assembly of the Council of Europe, the states of the Council of Europe agreed to set up an online Early Warning System, which is also intended to lead to rapid and effective responses to attacks on journalists and the media. Please search online for the ‘Platform for the Protection of Journalism and the Safety of Journalists’.
So far more than 60 ‘alerts’ have been published by the ‘partner organisations’: the AEJ, Article 19, the European and International Federation of Journalists (EFJ/IFJ) and Reporters Without Borders. The alerts highlight cases which raise serious concern about all kinds of violations of standards of press freedom and journalists’ safety, including physical attacks and threats, judicial harassment and impunity.
These alerts are sent by the Council of Europe to the authorities of the member states concerned, which are asked to respond to the specific cases. The various branches of the Council of Europe may also take action, raising the pressure on governments to remove the threats, injustices, or obstructions to the work of journalists.
The platform has had some positive results. For example, an alert concerning the case of a journalist in Slovenia who faced criminal prosecution and a possible jail sentence for publishing classified information prompted the government of Slovenia to amend the law, extending the safeguards protecting journalists who disclose such information when they are acting in the public interest.
Thus the Platform is the start of a system by which governments can be held to account directly, leading, we hope, to real improvements in the environment for journalists to work safely and without fear.
Secondly, on 30 April last year the Council of Europe’s Committee of Ministers publicly called for urgent actions to be taken by the member states themselves. The Ministers issued a “Declaration on the protection of journalism and the safety of journalists and other media actors” , which proposed that European states should urgently review their existing laws to create and maintain the necessary protections for free and independent journalism.
The text says: the Committee of Ministers “urges member states to fulfil their positive obligations to protect journalists and other media actors from any form of attack and to end impunity… and invites member states to review at least once every two years the conformity of domestic laws and practices with these obligations”.
This is potentially a game-changing initiative. And it echoes some of the proposals for legislative reforms and protection mechanisms that have been made by Ossigeno and other civil society organisations.
I am one of only two non-state members of the ‘expert committee’ of the Council of Europe, which before the end of this year will finalise a draft Recommendation outlining how such reviews may be carried out.
Reviews of laws and Rapid Response Mechanisms
The work of the expert committee, which is a sub-group of the Council of Europe’s Steering Committee for Media and Information Society, is not yet complete.
But it is clear that such reviews will need to strengthen safeguards in three main areas: 1) the framework of laws affecting journalism and journalists’ safety – including defamation and anti-terrorism laws; 2) the oversight and training of law-enforcement and other public officials, to ensure that the right of freedom of expression and other basic rights are properly protected; and 3) reforms to ensure that investigations and prosecutions of those responsible for crimes against journalists and other media actors are prompt, impartial and effective.
The key concept here is that of ‘positive obligations’; meaning proactive obligations on state authorities to secure the right to life of those under threat by putting in place laws to deter violent attacks and effective police measures to protect those under threat. Several landmark judgements of this kind have been made at the European Court of Human Rights in Strasbourg and other international courts.
For example, after the Turkish-Armenian journalists and editor Hrant Dink was murdered in Istanbul in 2007 the Strasbourg court ruled that the state was in violation of its positive obligations because the police failed to protect Hrant Dink even though direct threats were made against him by known ultra-nationalist groups. It was also a violation that the state dropped charges against police officers who had been accused of neglecting their duty to protect the victim.
The United Nations and the protection of journalists
Please note, too, that in the past three years 4 separate Resolutions have been adopted at the United Nations, indicating the high priority given by the whole international community to the task of protecting freedom of expression and media freedom.
The most significant is the General Assembly Resolution on the safety of journalists and the issue of impunity (A/RES/68/163), adopted without opposition in Dec 2013. It urges UN member states to promote a safe and enabling environment for journalists through a very wide range of actions including legislation, monitoring attacks, training police and justice officials, and dedicating the necessary resources to prosecute such attacks. The UN Secretary-General is tasked with reporting on the implementation of this Resolution.
Another UN Resolution on the Safety of Journalists, which was passed unanimously by the Human Rights Council in September 2014 (A/HRC/27/L.7), sets out the actions necessary to end impunity and stop the cycle of violence against journalists worldwide. Italy is one of the countries which proposed this Resolution.
Among its main recommendations are that states should create special investigative units and specialised prosecutors; adopt special protocols and methods of investigation and prosecution that are appropriate for finding out facts about attacks on journalists; and establish protection mechanisms — including early warning and rapid response systems.
All those aspects should be included in the review of laws and practices which is now proposed by the Council of Europe. Then the question arises: who exactly should carry out such important reviews, and recommend changes in national laws?
Of course, in democratic states any changes in the law must be adopted by the executive branch of government and approved in national parliaments. And parliaments, including cross-party committees, should have a leading part in scrutinising and amending legislation. But in order for the work of the reviewing body or bodies to command public trust it must be also have genuine and substantial participation by independent civil society and expert bodies.
Those may include Human Rights Commissions, Ombudsman offices, independent NGOs, academics and other independent bodies. Every Council of Europe state should reflect on this and take the task of reviewing its laws seriously in accordance with the Declaration which they made together in April 2014.
Meanwhile, senior legal experts of the United Nations have published a well-researched report which identifies ‘good practices’ in creating a safe and enabling environment for journalists. The UN’s High Commissioner for Human Rights, in cooperation with the UN’s Special Rapporteur on freedom of expression, presented their special Report on the Safety of Journalists to the Human Rights Council in July 213 (A/HRC/24/23).
Two recommendations are particularly relevant to this debate. The first is that governments should enact and implement laws that safeguard the lives and work of journalists, including in the areas of counter-terrorism and national security; and the UN report says specifically that laws and policies should support the work of non-governmental groups concerned with the protection of journalism.
The second recommendation is that governments should cooperate with media and human rights organisations to set up and operate ‘early warning and rapid response mechanisms’ for protection against attacks. The UN report urges the creation of ‘independent national mechanisms’ with authority to carry out investigations into cases related to the protection of journalists and even to coordinate policies among different government authorities. These national mechanisms, it says, should be composed of both state agencies and journalists’ and other civil society representatives.
Radical and wide-ranging measures are thus proposed both by the United Nations and by the Council of Europe, which reflect a widespread recognition that a truly effective system of checks and balances is needed, in view of past failures to protect the rights of free speech and journalism.
How current systems fail to protect journalists’ work
Let us look at two examples of the shortcomings of recent ad hoc attempts to bring laws and practices in Europe into line with international obligations.
Take laws on libel and defamation. In Italy, current laws have been misused to silence journalists who investigate matters of genuine public interest. Journalists have received criminal convictions, and been threatened with jail sentences, resulting in a chilling effect. After several years of discussion, amendments are now proposed in parliament, but they are still criticised for failing adequately to protect public interest journalism. So the job is not yet done.
In England and Wales, for many years the defamation laws were biased in favour of the rich and powerful, creating a deterrent to free speech and public debate on controversial subjects. At last in 2014 a new law came into force which provides for a public interest defence and gives better protection for the free expression of opinions. The changes came about thanks to a massive campaign by NGOs and citizens.
But further reforms are still awaited to reduce the excessively high costs of defending against a libel lawsuit. And libel law has not yet been amended in Scotland or Northern Ireland.
So the job is still not fully done.
Also in the UK, recent revelations show that state agencies have used terrorism and security-related laws to secretly monitor the communications of journalists and human rights organisations, and to access their telephone and e-mail data records. This was done without observing the necessary safeguards for freedom of expression and privacy, or the right of journalists to protect their confidential sources. Legal challenges are now being mounted against the government.
he government claims that it created safeguards in the form of an ‘independent reviewer of anti-terrorism legislation, who is a senior lawyer appointed by the government. But the latest report by the independent reviewer, David Anderson, concluded that some government behaviour has been ‘undemocratic and intolerable’. He recommends that all collection of electronic data should be subject to prior authorisation through a proper judicial process. He proposes a new independent Commission for that task, with special safeguards for journalists.
Mr Anderson says such reforms are necessary for public trust to be maintained in the work of the security and intelligence agencies. But it is still uncertain whether the government will adopt his recommendations. So again the job of protecting journalism is not done.
These examples demonstrate why the existing protections for journalists and journalism need to be radically strengthened. And all European governments are called on to give their urgent and full attention to the Recommendation from the Council of Europe’s Committee of Ministers on the protection of journalism and the safety of journalists and other media actors, which is expected to be made public early in 2016.
Government reforms and media vigilance
Finally, I endorse the words of Alberto Spampinato, the founder and head of Ossigeno per L’Informazione, who said that journalists and media houses have so far failed to inform their readers and the public about the scale of the violence and threats against journalists, and the damage it has done to democratic structures.
Alan Rusbridger, until recently the editor of The Guardian, warns that surveillance and other encroachments may make it impossible for journalists to continue to act as watchdogs against the misuse of political and economic power.
Eric Bjerager, the president of the World Editors Forum (of the World Association of Newspapers and News Publishers) issued a wake-up call to his fellow editors last year. He said: “We have a responsibility, as guardians of freedom of expression, to hold our governments to account in their efforts to do better… Together, we have the best chance of silencing those who wish to silence free journalism.”
Silence and secrecy breed injustice. We must look to the politicians to put their own houses in order by fulfilling their obligations to protect free speech and press freedom.
Journalists and the media should raise their game, too, by firmly resisting all attempts to silence the truth, and requiring that governments should deliver on their promises to uphold free speech and press freedom.