by: CHERYL L. DAYTEC-YANGOT
There is no
democracy without public discourse and no public discourse without freedom of
speech, freedom of the media, and freedom of information.[1]
Freedom of expression comes with duties and
responsibilities owed to truth, to
independence, to impartiality, to objectivity, to democracy, and to individual privacy,
among others.
Fidelity to truth comes
with what Strasbourg calls “the duty to
impart information and ideas on matters of public concern.”[2] Media should be impartial. In order for them to generate a democratic culture, they
should be neutral observers,
“unengaged with events but faithfully recording them.”[3]
The duty to be objective calls on media to express
value-judgments- even polemical ones-
standing on facts.[4] They are
responsible in ensuring veracity
of stories, although “exaggeration or even a degree of provocation is
protected.[5] In Bladet Tromso v. Norway,[6] Strasbourg ruled that it is sufficient that journalists “rely on the contents of official reports
without having to undertake independent research.” The minority
however propounded that to enjoy
protection under Article 10 of the European Convention on Human Rights,
they must investigate. In one
case, Strasbourg said that media must
ensure accuracy of historical facts
since unlike temporal news, there is no urgency in publishing them, [7] in effect elevating the standard
for responsibility to scrutinize
veracity compared to the standard when they report news, a “perishable
commodity.[8] In another,[9] it
implied that media have the duty for balanced reportage and to respect the other side’s right-of-reply.
Fidelity to democracy
demands public watchdogs[10] to propagate information on matters of public
interest or concern[11] and stimulate
public discussion or spur public debate.[12] The
configuration of people’s political consciousness depends on data received.
Democracy is not just a government where
people elect their leaders. It is one where people have adequate information
upon which to anchor their political decisions including who to vote for. Knowledge
is power. Thus, the Camden Principles declare that
“when people are denied public participation and voice, their issues,
experiences and concerns are rendered invisible, and they become more
vulnerable to bigotry, prejudice and marginalization.[13]
Media play a
crucial role not only as purveyors of raw facts but also of informed opinions as suggested in Lingens.[14] By crystallizing
issues in sound value-judgments, they
aid the public to
adopt positions on social issues, enabling them to be part of public
discourse, inspiring dissent to
unbridled use of State power, effectively enhancing democracy. Thus, media should create
forums for public debate.[15]
The minority in Bladet
Tromso asserted a negative media responsibility: they should not sacrifice
facts “for the commercial gratification of an immediate scoop.” It said that
newspapers have the “ordinary obligation to verify factual statements that were
defamatory of private individuals,” implying the duty to protect individual
privacy. But the majority judgment,
while prizing respect for the rights and reputation of others and protection of confidential information, stressed that
media’s duty “is nevertheless to impart- in a manner consistent with its
obligations and responsibilities- information and ideas on all matters of
public interest” because “the public also has a
right to receive them.”[16] This suggests that privacy
yields to public interest and it is media’s duty to promote it.
Strasbourg stressed that press freedom “affords the
public one of the best means of discovering and forming an opinion of ideas and
political leaders.”[17] But “the safeguard…to journalists in relation
to reporting on issues of general interest is subject to the proviso that they were acting in good faith in order to provide
accurate and reliable information in accordance with the ethics of journalism.”[18]
Media must ensure no confidential
information leak[19] or confidential source disclosures. Source protection is a
free press premise. Absent such, sources may withhold information
germane to public interest for fear of persecution, essentially impeding the public’s
right to information. Thus, to compel journalists to reveal sources
infringed their right.[20] Essentially, this was
reiterated in Sanoma Uitgevers BV v The Netherlands[21]
but Strasbourg modified the duty when it
held that forcing journalists who
exposed illegal car races and edited photographs for source anonymity to produce the CD-ROM storing the original photographs was
above-board because it was intended to identify a vehicle used in a grave
felony irrelevant to the illegal race. It said that States may balance
conflicting interests served by crime prosecution against protection of sources.
As a consciousness purveyor, media have pervasive public influence. Thus
it is incumbent upon them not to use freedom of expression without
self-restraint to advocate racism,[22] violence,[23] totalitarianism[24] or corruption of the young’s morals.[25]
Indubitably,
freedom of expression is not a license. It is a right that comes with a twin:
responsibility.
[1] Dieter
Grimm, “Freedom of Speech in a Globalized World” in EXTREME SPEECH AND DEMOCRACY, (Ivan Hare
and James Weinstein, eds., 2009).
[2]Observer v. the United Kingdom, 26 November
1991, § 59, Series A no. 216, and Thorgeirson v. Iceland,
25 June 1992, § 63, Series A no. 239); Castels v Spain, 4 EHRR
445 (1992); Lingens v. Austria, 8 EHRR 407 (1988).
[3] Szabadsagjogokert v. Hungary,
Application no. 37374/05 (14 April 2009).
[4]
Oberschlick v. Austria, 19 EHHR 839 (No. 2), 1997; De Haes v. Belgium, 25 EHRR 11 (1997).
[5] Prager
v. Austria (26 April 1995).
[6] Application
No. 21980/93 (20 May 1999).
[7] Times
Newspapers (Nos. 1 and 2) v UK ,
Application No. 3002/03 and 23676/03, (10 March 2009).
[8] Id.
[9] Tidende v. Norway, 2000 EHRR 305 (2 May 2000).
[10] Traditionally, mass media were regarded as the public watchdogs. But
contemporary Strasbourg jurisprudence says that even organizations outside of
the mainstream media, like civil society organizations and non-government
organizations are also public watchdogs. See
Szabadsagjogokert
v. Hungary, Application no. 37374/05 (14 April 2009).
[11] Goodwin
v. United Kingdom, Application No. 16/1994/463/544
(27 March 1996).
[12] Steel
and Morris v UK , Application No. 68416/01 (15 February 2005).
[13]
Introductory Statement, The Camden Principles on Freedom of Expression and Equality.
[14] Lingens
v. Austria, 8 EHRR 407 (1988).
[15] Szabadsagjogokert
v. Hungary, Application no. 37374/05 (14 April 2009).
[16] Id.
[17] Lingens
v. Austria, 8 EHRR 407 (1988).
[18] Bergens
Tidende et alis v Norway, 2000 EHRR
305 (2 May 2000) ; Stoll v. Switzerland
(2007) ECHR 69698/01; Fressoz and Roire v.
France (GC), Application No. 29183/95 (21 January 1999).
[18] Jersild
v. Denmark, Application No. 15890/88, ECHR, Ser. A, No. 298 (1995).
[19] See
Article 10, European Convention on Human Rights.
[20] Goodwin
v. UK, Application No. 16/1994/463/544
(27 March 1996); reiterated in Szabadsagjogokert
v. Hungary, Application no. 37374/05 (14 April 2009).
[21] Application No.
38224/03 (31 March 2009)
[22] Jersild v. Denmark
[23] Leroy v. France
[24] B.H., M.W., H.P. and G.K. v Austria
[25] Handyside v. UK
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