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Strasbourg, 3 May 2002

CDMM(2002)007

 
 

STEERING COMMITTEE ON THE MASS MEDIA

(CDMM)

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Compendium of the replies to the questionnaire on media and terrorism

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Secretariat memorandum
prepared by the
Directorate General of Human Rights

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Introduction:

This document reproduces replies received from interested organisations to the questionnaire on media and terrorism.

Questionnaire concerning freedom of expression and information and terrorism

I. Scope and limits of freedom of expression

A. Freedom of expression of persons suspected, accused or convicted of terrorism

1. What limitations on freedom of expression of persons suspected, accused or convicted of terrorism may be justified?

B. Freedom and responsibilities of the media and the right of the public to be informed

The following questions may call for different answers depending on the nature of the media, its form or readership/audience. Furthermore, the CDMM is interested in discussing these questions from the point of view of both State regulation and self-regulation by the media.

1. What limitations on the rights of the media or what specific obligations for the media may be justified concerning:

(i) the dissemination of statements from suspected or convicted terrorists,
(ii) access to areas where terrorist acts have taken place or where police or military personnel is active in combating terrorism,
(iii) the publication/broadcasting of images of terrorist acts or of the results of these acts,
(iv) reports on measures to fight terrorism,
(v) the disclosure of journalists’ sources of information about terrorist activities.

2. Do the media have specific obligations concerning respect for the presumption of innocence of persons suspected or accused of terrorism?

3. Do the media have a duty to be impartial when covering/reporting on acts of terrorism?

II. Obligations of public authorities

1. To what extent can it be justified for public authorities to withhold information, or even present deliberately false information, in order to fight terrorism? Under what possible control and by whom?

2. How can the public authorities best fulfil their obligation to protect media professionals from being the victim of terrorist acts and to investigate and bring to justice the authors of such acts?

III. How to promote active contribution by the media to intercultural and inter-religious dialogue?

1. Terrorist violence often arises from the perception (real or supposed) that the community is a victim of injustice from a more powerful enemy. Do the media have the responsibility to expose and, as appropriate, dismiss such perceptions and to counteract prejudices, and how can they best achieve this objective?

2. How can or should the media play an active role in increasing understanding between different ethnic or religious groups and thus in preventing violent clashes and terrorism? Does television have a specific role to play in this respect? Can/should public authorities support/encourage such initiatives and in the affirmative, how?

3. Are there concrete examples of self-regulatory initiatives by the media in order to promote better understanding between different ethnic or religious groups?

4. How to avoid media professionals (journalists, editors, etc.) being influenced by ethnic, religious or other prejudices when reporting on terrorism and related events?

IV. Possible action by the Council of Europe

1. What, in your opinion, could or should the Council of Europe do regarding the above questions?

Article 19

In the aftermath of the events of 11 September, countries around the world have sought to address the problem of terrorism more effectively and more actively. By-and-large these efforts are both necessary and legitimate, including from the perspective of human rights. At the same time, there is a worrying trend whereby authorities have in some cases taken advantage of the climate of fear and emotion which those events generated to trench on established rights, including the right to freedom of expression and information. Measures to address terrorism need to be analysed carefully, in accordance with established jurisprudence relating to the limits of and tests for restrictions on rights. The enormity of the tragedy of 11 September cannot of itself justify restricting rights.

In general, in the area of freedom of expression and information, ARTICLE 19 considers that additional restrictions specifically to combat terrorism are rarely justified. First, terrorism is not a new phenomenon and existing restrictions have generally been developed in light of it as an existing threat. Second, restrictions on freedom of expression and information are often generic in nature and are, as a result, sufficiently flexible to accommodate measures to address terrorism. For example, a prohibition on incitement to crime, common in countries around the world, already covers incitement to terrorism. Third, although terrorism is a unique form of criminal activity, the modalities by which law enforcement agencies seek to combat it bear significant resemblance to approaches for other forms of international organised crime, such as drug smuggling. To the extent that this is the case, there is no justification for additional restrictions on rights.

Response to Specific Questions

I. Scope and Limits on Freedom of Expression

A. Freedom of expression of persons suspected, accused or convicted of terrorism

1. What limitations on freedom of expression of persons suspected, accused or convicted of terrorism may be justified?

Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms does not distinguish between different categories of persons. Therefore, prima facie, persons suspected, accused or convicted of terrorism benefit from the full protection of this provision, that is to say, their freedom of expression may only be restricted in accordance with the three-part test for such restrictions.

Extreme caution should be applied to any restriction sought to be justified on the basis of mere suspicion of terrorism. The State bears no onus in relation to such suspicion, unlike in relation to accusation and conviction, and it is thus risky to envisage restrictions based on it. Furthermore, suspicion of terrorism is notoriously suspect; most of those of Arab origin who were detained in the United States following the events of 11 September proved to be innocent.

The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, developed by ARTICLE 19 and endorsed by, among others, the UN Special Rapporteur on Freedom of Opinion and Expression, set out the appropriate standards to be applied where national security is threatened. The Principles stress the need for a close nexus between the expression sought to be restricted and the threat of harm to national security. Principle 6, for example, states:

Subject to Principles 15 and 16 [which further limit the scope of restrictions], expression may be punished as a threat to national security only if a government can demonstrate that:

(a) the expression is intended to incite imminent violence;
(b) it is likely to incite such violence; and
(c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Principle 8 stresses the need for such nexus, ruling out general prohibitions based on organisational links:

In our view, as noted above, special restrictions on freedom of expression related to terrorism are rarely justifiable. General restrictions, for example prohibiting incitement to or collusion in crime, are applicable in the context of terrorism. Similarly, general powers to monitor or intercept communications, which have been developed in the context of a wide range of criminal activity, should in principle be sufficient to deal with the criminal threat of terrorism. Indeed, the trend in recent years has been to narrow down the scope of these powers, including through the jurisprudence of the European Court of Human Rights, in recognition of the fact that the power to monitor and/or intercept communications has frequently been abused in the past. The Internet is a powerful tool both for exercising the right to freedom of expression and for assisting in the perpetration of crime. As a result, it poses special challenges for law enforcement officials, as well as regulators. Terrorist use of the Internet does not differ in material ways from that of other users, so additional powers should not be necessary.

B. Freedom and responsibilities of the media and the right of the public to be informed

1. What limitations on the rights of the media or what specific obligations for the media may be justified concerning:

i) the dissemination of statements from suspected or convicted terrorists;

In our view, from a legal perspective, no special restrictions would be justified regarding the dissemination of statements from suspected or convicted terrorists and we are not aware of any country which has tried to impose such restrictions. It is, therefore, up to the media to decide as a matter of editorial independence whether or not to carry such statements. Regular rules would however apply. Statements which were a direct incitement to commit, or to collude in, an illegal act may be suppressed, although this restriction needs to be interpreted narrowly in the sense that only statements which themselves cause an immediate, direct and serious risk of illegal action would be covered. For broadcasters, taste and decency restrictions, or prohibitions on incitement in codes of conduct might apply, depending on the nature of the statement, and for the print media voluntary codes of conduct might need to be considered in relation to any specific statement. The Independent Television Commission Programme Code for television broadcasters in the UK makes specific reference to the need to exercise special care when broadcasting statements by those who advocate the use of violence, but within the overall context of not broadcasting incitement.

During the military campaign against the Taliban both President Bush and Prime Minister Blair sought to dissuade broadcasters from broadcasting speeches by Osama bin Laden, ostensibly on the grounds that he might be using these to transmit secret messages. This was justified by White House spokesperson Ari Fleischer as follows:

This is clearly risible; Osama bin Laden and his multi-billion dollar network surely have more effective ways of spreading their message than through the US networks (if they wanted to use a broadcasters, which hardly seems the most reliable means of issuing commands given other options such as the Internet, Al-Jazeera would be a more likely choice). ARTICLE 19 considers that these approaches by Bush and Blair were a blatant attempt to exert political influence over the media, a view shared by the many organisations which protested against them at the time.

ii) Access to areas where terrorist acts have taken place or where police or military personnel are active in combating terrorism;

Restrictions on access to areas where attacks have taken place can be justified only in very limited circumstances. It is obviously a matter of very great public interest that the media be able to report quickly and comprehensively on such attacks. Such restrictions may in extreme cases by justified briefly to protect legitimately secret documents, such as may have been exposed by the attack on the Pentagon, or to preserve evidence, as for any criminal act. The issue of the safety of journalists is dealt with below.

Several justifications have been advanced for restricting access to areas of active combat, including against terrorism. As with attacks that have taken place, this is also a matter of great public interest. One justification is that this is necessary for the safety of journalists. In our view, this is illegitimate. Journalists should clearly be informed of the risks, but it should then be up to them to decide whether or not to take those risks.

We also consider that the need to maintain public morale and support for the action is not a legitimate ground to restrict media access. Although public support may be as important to the success of a campaign as military prowess, it can never be legitimate to maintain such support through denying access to information. Rather, such support should be ensured, as with other political issues, by convincing the public, in light of the main relevant facts, of the legitimacy and importance of the initiative. We are suspicious, however, that for military authorities maintaining public support, rather than safety, is often the primary reason for wishing to deny journalists access. The Vietnam war provided military organisations around the world with a clear picture of the “dangers” of open access which they have not forgotten.

On the other hand, the safety and success of the action from a military perspective are legitimate grounds to deny journalists access, including where journalists would endanger other people’s lives, but only when this access really would pose a risk. The military clearly cannot jeopardise their operation, or lives, even to ensure the provision of timely information to the public. It may even be incumbent upon the media to specifically refrain from publishing information which might undermine an action. For example, the BBC published a set of Editorial Policy Guidelines regarding their coverage of the military events in Afghanistan which included a commitment to withhold information for a while at the request of the military authorities, as long as satisfactory reasons are given.

The key problem here, however, is that it will often be impossible for the media, or even courts, to properly assess military claims of a need for secrecy. Partly as a result of this, and partly given the major stakes involved, military authorities often abuse their power to exclude journalists during active military campaigns, allowing only limited access at times and places which suit them. To address this problem, we would advocate in favour of rules which provide for sanctions against military units or individuals who unjustifiably deny media access.

iii) The publication/broadcasting of images of terrorist acts or of the results of these acts

This is an area where self-regulation is appropriate for the print media and a combination of self-regulation and mandatory codes of conduct are appropriate for broadcasters. The BBC has a policy of trying to avoid that relatives first hear about a death through them, something which they should clearly strive for but which may need to be balanced against the overall public interest in some cases. Similarly, press codes often include clauses on intrusion into grief.

There may also be some application here for rules in broadcasting codes of conduct on gratuitous or excessive violence or taste and decency but normally the public has a right to see images of these attacks, even if they are very disturbing, and the media has a corresponding duty to show them. In such cases, it may be appropriate for an advance warning to be given.

iv) Reports on measures to fight terrorism

Such measures should be covered by the right to information – so that public authorities should be required to disclose them – unless disclosure can be shown to pose a real and serious threat to the success of these measures (see below for more on freedom of information).

v) The disclosure of journalists’ sources of information about terrorist activities

In our view, journalists should be subject to mandatory source disclosure only in the rarest of circumstances. This might include an instance where disclosure was necessary to prevent an imminent attack threatening physical injury or death. Such cases are, however, largely theoretical and so should probably be dealt with as a matter of individual conscience, rather than through the law.

A law which required journalists to disclose confidential sources is likely to deliver positive results in terms of law enforcement at best only once, after which terrorists will no longer disclose information to journalists, even on a confidential basis. This is recognised as the case generally for confidential sources but is for obvious reasons applicable to information about terrorism. As a result, the main impact of such a rule, particularly in the longer-term, would be to deprive the public, and even law enforcement agencies, who also rely on the media, of information about terrorists and their activities. Recommendation R(2000)7 of the Committee of Ministers limits mandatory source disclosure to cases where the “legitimate interest in the disclosure clearly outweighs the public interest in the non-disclosure”. In our view, the balancing needs to take into account both short-term and longer-term implications of the disclosure. In our view, requiring journalists to disclose information about terrorism cannot, therefore, be justified.

Despite this, some countries have recently passed laws restricting the right to source confidentiality in the context of terrorism. This is the case, for example, in India where a new anti-terrorism law passed on 1 April requires journalists give the authorities any information which may be of assistance in preventing a terrorist attack.

2. Do the media have specific obligations concerning respect for the presumption of innocence of persons suspected or accused of terrorism?

In our view, there is no need for special rules regarding the presumption of innocence of those accused of terrorism, over and above rules of general application in this area which are in place in most countries. Indeed, we consider that in most cases the existing rules represent an unjustifiable limitation on freedom of expression.

Rules relating to reporting on legal cases are justified by reference to two goals, namely maintaining the authority of the judiciary and protecting the rights of the accused to a fair trial, including the presumption of innocence. Regarding the former, freedom of expression cannot be justified simply to maintain respect for a public institution unless such respect is necessary for that public institution to be able to function. As a result, restrictions on freedom of expression to maintain the authority of the judiciary are legitimate only to the extent that they are necessary to ensure reliance on the courts, rather than illegal means, as the final arbiters of disputes in society. It is noteworthy that in the US, where the media are almost entirely free to criticise the courts and judges, there is no indication that this has undermined the role of the courts. ARTICLE 19 believes that restrictions on freedom of expression simply to maintain the authority of the judiciary can no longer be justified.

Media reporting may be restricted where it can be shown that this would undermine the right of an accused person to a fair trial. However, in many instances restrictions are imposed which are most unlikely to have this result. Courts, and jurors, are exposed to the arguments and strategies of clever public prosecutors whose only goal is to see individuals convicted. In light of this, claims that media coverage would bias a trial need to be regarded with extreme suspicion. Indeed, in the absence of a concerted media campaign, it will be extremely rare that the media coverage of itself will result in a trial being biased. The little social science research in this area suggests that jurors are far more resistant to bias in the media than the paternalistic laws in place in many countries recognise.

3. Do the media have a duty to be impartial when covering/reporting on acts of terrorism?

Broadcasters in many countries are subject to general requirements of impartiality, including when reporting on terrorism, and in our view such requirements are legitimate.

Such restrictions do not, however apply to the print media, which often have a specific political slant. In our view, it is legitimate for the print media to take a position which may be regarded as partial, including in relation to terrorism, although it is not immediately clear what form such partiality would take. However, the media do have a professional obligation to strive to be accurate, and to provide for a mechanism to address inaccuracies.

II. Obligations of public authorities

1. To what extent can it be justified for public authorities to withhold information, or even present deliberately false information, in order to fight terrorism? Under what possible control and by whom?

In our view it can never be justifiable for public authorities to deliberately release false information to the public. This would seriously undermine public trust, as well as the right to information, and cannot be justified by reference to any legitimate aim. Despite this, misleading the public certainly does happen, particularly during active military campaigns. Direct lies are rare, but other more subtle forms of dishonesty are more frequent. A good example was the 19 October 2001 raid by US forces inside Afghanistan, which General Richard Myers, Chairman of the US Joint Chiefs of Staff, claimed in a press briefing had been conducted “without significant interference from Taliban forces” although in fact the Taliban had repulsed the attack.

In this area, as in others, the rules relating to information regarding terrorism should not differ from those generally applicable. The right to information is subject to a number of recognised exceptions, two of which – law enforcement and national security – may be relevant here. I cite below the provisions from the ARTICLE 19 Model Freedom of Information Law relating to these two exceptions:

As the above provisions make clear, exceptions to the right to information need to be clear and narrow, and applicable only in cases where there is a risk of specific harm to a legitimate interest. In addition, all exceptions should be subject to a general public interest override.

In addition to these substantive measures to guarantee the right of access, a number of procedural protections should be applicable to any regime of classification. Classification should be subject to regular review by the classifying agency (for example, in Bulgaria a new law proposes review classification every two years) and to overall presumptive time limits on classification, after which further classification would need to be specifically justified (such time limits are in place in many jurisdictions). The power to apply classifications to documents should be as restricted as is practically possible, so that only senior officials can undertake this task.

Classification of a document should be subject to challenge by anyone requesting access to a document. Recommendation R (2002)2 of the Committee of Ministers notes: “An applicant should always have access to an expeditious and inexpensive review procedure”. Ideally, to meet these conditions, appeals should initially go before an administrative body to ensure. Finally, the law should protect individuals who mistakenly but reasonably and in good faith disclose documents; otherwise, civil servants will inevitably err in favour of secrecy to the detriment of the public’s right to know.

2. How can the public authorities best fulfil their obligation to protect media professionals from being the victim of terrorist acts and to investigate and bring to justice the authors of such acts?

This is a technical law enforcement and security question, an area in which ARTICLE 19 does not have expertise.

III. How to promote active contribution by the media to intercultural and inter-religious dialogue?

In our view, the answer to all of the questions under this part fall into the area of self-regulation and hence to some extent outside of ARTICLE 19’s area of expertise. We do believe that the media have a social, and probably professional obligation to combat prejudices and to promote tolerance but the modalities by which this should happen are matters for media practitioners.

IV. Possible action by the Council of Europe

1. What, in your opinion, could or should the Council of Europe do regarding the above questions?

The Council of Europe plays a key role in setting standards in these areas and in ensuring that member States do not unduly restrict rights. The Council should consider setting out in authoritative form (e.g. in a Recommendation of the Committee of Ministers) the standards outlined above. Alternatively, the Council should make it clear to member States that in most cases specific additional restrictions on freedom of expression and information are not necessary to address the threat of terrorism.

A comparative study on secrecy laws with specific focus on limits imposed in the name of combating terrorism would be a useful addition to existing information. Similarly, a study on the systems and scope of classification on the basis of national security in member States would be useful.

European Newspaper Publishers’ Association (ENPA)

A1. Persons accused, suspected or convicted of terrorism should basically not be deprived from their right of freedom of expression. They may, however - as normally is the case in most countries with anybody who is in custody or in jail - be subject to some limitations if there are well-founded reasons to believe that criminal acts can be prevented.

B1(i). The media should not be prevented from disseminating statements from accused or convicted terrorists. If the statement itself has a criminal content, the responsibility for publishing/disseminating it lies with the media/its responsible publisher. This does not automatically mean that the media will disseminate/publish statements. The media itself may, from an ethical point of view, decide not to disseminate/publish it.

B1(ii). The media should be given access to areas where terrorist acts have taken place or where police or military personnel are active in combating terrorism. This may be subject to some limitations if it is clear that there are safety or investigational reasons for such limitations. However, such limitations should only be temporary and it is important that the right of access for the media and its right to perform its profession is respected.

B1(iii). The media should not be prevented from publishing/broadcasting images of terrorist acts or the results of these acts. The media itself may, from an ethical point of view, decide to lay down some restrictions as regards its publishing of such acts.

B1(iv). Reports on measures to fight terrorism will to some extent probably be subject to secrecy and, therefore, will not be available to the media. There is, however, also a public interest for information on such measures so that they can be discussed.

B1 (v). The disclosure of journalists’ sources of information about terrorist activities should not be possible, except in extreme situations where there is a clear and immense threat to life or property and such acts can thereby be prevented. Such disclosure should always require a court decision.

2. In some cases, it might be obvious that a person is guilty, but the media should treat all individuals as innocent until found guilty by a court.

3. When reporting on acts of terrorism, the media should – although not as a legal obligation – try to be impartial, but also try to describe and explain backgrounds, why things developed the way they did, motives and reasons, etc. It is understandable, however, if the media cannot always be impartial as concerns acts of terrorism. When commenting on acts of terrorism, the media should not have an obligation to be impartial.

II. Obligations of public authorities

1. There will of course always be situations where one can say, at least in retrospect, that it would have been justified for public authorities to withhold information or even spread false information. However, this is a very dangerous path to follow. It is practically impossible to define when such circumstances exist and there is a great potential for misuse. It would also be very harmful to the reliability of the media if information given by the media from public authorities turned out to be false. It cannot therefore be justified.

2. If there are threats to media professionals, public authorities should provide them with protection and at the same time try to facilitate that they can continue their work.

III. How to promote active contribution by the media to intercultural and inter-religious dialouge?

1. The media do not only report on what is happening in society but also try to explain and describe why things are happening, backgrounds, what perceptions there might be behind violence or other acts, intercultural and inter-religious differences that may cause such acts. This is not an easy, but important task, in order to promote understanding on developments that take place in the society. This is a responsibility that most media also take, but it is not a responsibility that public authorities can order them to take.

2. See question 1.

3. Perhaps not at the level of self-regulatory systems, but there are many examples of how the media try to mirror different ethnic or religious groups – by reporting or by offering them to present their views in different ways through the media, by bringing them together for discussions and so on – in order to promote better understanding.

4. There is always a risk that one becomes influenced and, therefore, it is important that media professionals keep in mind that they should stay independent and avoid prejudices. This can only be done by the media and its audience.

IV. Possible action by the Council of Europe

1. The Council of Europe could consider different ways to promote further discussion on these issues in order to raise awareness about the problems and difficulties that are at stake. The Council of Europe should also closely monitor the developments that take place in order to make sure that freedom of expression and of the media is maintained and that any limitations – if any – of freedom of expression and of the press are carefully considered and do not go beyond what can be justified.