The Alarming Situation of Press Freedom in Europe

The Regent’s Report 2014, 25/11/2014

A free, diverse and responsible press is a core element of any functioning democracy. The ‘fourth estate’ is in fact a bulwark of the rule of law and a key source of information necessary for citizens’ effective participation in a democratic society. The press also sustains democracy by bringing to light human rights violations, such as torture, discrimination, corruption or the misuse of power. Truth-telling is often the first essential step to redressing human rights violations and holding governments accountable.

This is why press freedom is protected by both national and international law, in particular the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights (ECHR). In more recent times, the Charter of Fundamental Rights of the European Union (EU) further established the duty of EU institutions to protect media freedom and pluralism.

It is particularly within the 47-member Council of Europe that legal norms governing freedom of the press have been elaborated in the ‘hard law’ of the jurisprudence of the European Court of Human Rights, and also in the ‘soft law’ of political recommendations and resolutions. The existing standards put both negative and positive obligations on countries, which means that they have to refrain from unduly interfering with journalists’ work while also ensuring pluralism and media diversity. These rights go hand in hand with responsibilities. Irresponsible media coverage or journalists’ unethical or illegal behaviour can seriously harm the profession’s credibility and undermine its ability to serve the common good.

This may sound obvious, but translating principles into reality remains problematic. Press freedom across the world has been deteriorating in recent years, with a clear acceleration over the last 12 months during which hundreds of journalists, photographers and camera operators have been killed, injured, kidnapped, threatened or sued.

Europe is no exception. Worrying patterns are eroding press freedom here too, where violence against

journalists, repressive legislation and ownership concentration put a strain on the safety, freedom and independence of journalism.

An Unsafe Environment

Among the most widespread threats to journalists’ safety in Europe today is police violence against journalists covering demonstrations. I raised this issue with the Turkish government right after the Gezi events, when the police used excessive force against demonstrators and journalists, some of whom were injured or had their equipment damaged.

In Ukraine, with tensions heightening during the demonstrations in February, more than one hundred journalists were attacked, including by the use of stun grenades and rubber bullets. While there, I heard stories of severe violence against journalists who had been shot in the eye or face and beaten. Most tragically, a journalist of Vesti newspaper was lethally shot in the chest by unknown thugs during the demonstrations, while in May a photographer was killed.

With them, five journalists have been killed in Europe since February 2013.

In Bosnia, too, some journalists and TV operators covering the demonstrations against corruption and austerity have been treated violently by the police.

Policing of demonstrations has also sometimes impinged on press freedom in Spain. At the end of March this year, for example, a group of journalists and photographers were beaten by the police in spite of having identified themselves as members of the press.

As well as the police, journalists are also frequently targeted by non-state actors. As I was told by Ossigeno per l’Informazione, an observatory that carries out valuable awareness-raising work on press freedom in Italy, 1,900 journalists in the country have been victims of some sort of violence, including arson and threats, since 2006. In the first three months of 2014, 200 cases have been reported, well above the average of previous years.

Lack of journalists’ safety and impunity for crimes committed against journalists remain a serious problem in Montenegro, too, as I observed during my visit to the country last March. While several past cases remain unsolved new ones are occurring, such as the recent brutal assault on a journalist by masked assailants wielding a baseball bat.

In Bulgaria at the beginning of April, journalists organised a protest in solidarity with a bTV journalist whose company car was set on fire outside her home. Her personal car suffered the same fate in September last year.

Conflicts zones also remain dangerous places for journalists. The case of Crimea is emblematic: press members have been kidnapped, intimidated and denied access, and had their material confiscated by armed people. Tensions between Russia and Ukraine have had further repercussions on the media in both countries. Pressures on independent journalists in Russia have increased, while Ukraine has prevented some Russian journalists from entering the country, thus sparking new tensions after its decision to block a number of Russian television broadcasters. In the east of Ukraine, journalists have recently been detained, ill-treated, threatened and harassed and are increasingly coming under attack from all the sides involved in the tensions.

Muzzling Legislation

Streets are not the sole battleground where press freedom is undermined. Courts are too. In the majority of European countries, defamation or libel are still part of criminal law, a fact that is hardly reconcilable with international standards.

In Azerbaijan, where journalists expressing critical views are often harassed with legal challenges, ten journalists are in prison because of their reporting. Many more are behind bars in Turkey, two in the Russian Federation, while in the Former Yugoslav Republic of Macedonia the detention of Tomsilav Kezarovski, from the newspaper Nova Makedonija, has more than other cases exposed the extent of political interference with press freedom.

Lawsuits against journalists are common practice in Italy, too, where defamation is governed by harsh legal provisions, some of which were introduced by the fascist regime more than 70 years ago. It is under this legal framework that many journalists are sued today and sometimes condemned to prison terms.

In Slovenia, another country where defamation is a criminal offence, in April the prosecutors’ office indicted a journalist from the newspaper Delo for publishing allegedly classified material in 2011 while researching the rise of extremist groups in the country and uncovering the involvement of army and police members with these groups’ activities. She may pay with up to three years in prison.

The Greek criminal code also allows the arrest of journalists in cases of libel. Though guidelines require police officers to inform the prosecutor before arresting a journalist for libel, evidence shows that the police often disregard this requirement. Just recently, after a member of parliament sued several journalists for criticising her statements, the police went to their newsrooms to arrest them without prior consent of the prosecutor. The police found only one journalist, but he was kept overnight in police custody before being freed by a judge the following day.

Another EU country where inadequate legislation threatens press freedom is Croatia. Under the country’s new penal code, anybody, including journalists, can be convicted for causing humiliation even if what they report is true. This was the case of a journalist for Jutarnji list who has been fined €4,000 by a first instance court for disclosing the mishandling of public funds by a private healthcare company.

Such monetary fines, very often disproportionate, are another widespread threat to press freedom. Excessive damages awarded in civil defamation cases have put some European media and journalists under heavy pressure, or even threatened their economic survival.

Troubles do not end here. Legislation on state secrets or terrorism are in fact often used as a sort of overriding legislation invoked to justify pressure on journalists to disclose sources or to hand material to the authorities. This problem came up again in the summer of 2013, when the UK’s Government Communications Headquarters ordered The Guardian to destroy hard drives containing copies of intelligence files unveiling the National Security Agency’s (NSA) snooping programme. Just a few days later, David Miranda, the partner of Glenn Greenwald – the former Guardian journalist who revealed the NSA snooping scandal – was detained under counter-terrorism powers at London’s Heathrow Airport and had his computer material seized.

A similar case occurred in May this year when two French journalists were detained at the airport in Baku, Azerbaijan, and had their notes and memory cards containing interviews with dissenters confiscated by the authorities.

Oligopolistic Powers

A more subtle threat comes from the concentration of ownership of media companies. When few big and powerful holdings or oligarchs own them, media diversity and pluralism are at risk. This is not a new phenomenon, but has been accelerated further by the economic crisis.

In spite of international standards established to limit this phenomenon, ownership of media companies is highly concentrated in several European countries. The frequent lack of transparency about the different layers of ownership makes it difficult to disentangle the opaque intersection of politics, business and media ownership and discern the influence it exerts on editorial choices.

In addition to this problem, the control of advertising and distribution represents a further constraint on press freedom, as it can be used to prevent competitors investing in a market or to stifle media opponents.

Ethical Journalism

As well as these external threats, there exists a threat from within the press that journalists and their regulatory

bodies have to stem. If the press wants to preserve its ability to play its crucial democratic role, it has to counter unethical or illegal journalistic behaviour better. Regrettably, some media outlets have engaged in illegal activities while others have turned into propaganda megaphones for those in power, or into channels propagating xenophobic stereotypes against minorities and other vulnerable groups of people. This may lead to nefarious political and societal consequences.

In October last year, for example, I felt compelled to publish an open letter to media professionals calling on them to stop irresponsible media reporting on Roma. Back then, the long-standing problem of stereotyped media reporting on minorities vehemently re-emerged with the cases of children found in Roma families in Greece and Ireland whose kinship was questioned. By concentrating on the ethnicity of the families from which the children had been taken by the police, most news reports, all over the world, propagated age-old myths portraying Roma as child-abductors.

Such reporting was not just false but also dangerous as it risked heightening the already tense relations between Roma and the majority population all over Europe.

It also happens that journalists purposely ignore the duty to strike a balance between the right to privacy and the right of the press to investigate and publish. As the News of the World phone-hacking scandal in the United Kingdom revealed, the search for sensationalism can lead to illegal and unethical activity in the newsroom. This is harmful both for people’s privacy and for press freedom because it can encourage increased government intrusion in media regulation. This case in fact clearly exposes the failure of self-regulatory bodies to enforce ethical codes of conduct for journalists.

Eight Steps to Preserve Press Freedom

Although press freedom is an acknowledged human right protected by law, the reality, even in Europe, raises serious concerns about the way states uphold it and journalists use it. Violence, repressive legislation, opaque ownership, and pressures of various natures are all factors undermining press freedom. In addition, unethical and illegal behaviour has caused profound harm to the credibility of the profession, thus limiting its ability to perform its necessary democratic function.

If we want to ensure that the press continues playing its crucial role of democracy watchdog, practical, normative and behavioural changes are necessary:

• First of all, governments have to break out of the state of denial behind which they hide the problems faced by the press. Acknowledging the critical situation is a precondition for any solution. I also think that reliable information is needed to assess the state of the press and that the establishment of a pan-European network of national observatories on violence against journalists would greatly help moving forward.

•Another urgent step is to free all journalists imprisoned because of the views they have expressed and to clear the criminal records of those who have been condemned for their reports. This present situation is in fact incompatible with human rights and the rule of law.

• It is also particularly important to eradicate impunity by effectively investigating all cases of violence

against journalists, including those involving state actors such as law enforcement officials. Such a move should be reinforced by specific instructions and training for the police on the protection of journalists.

• In addition, legislation must change. Defamation and libel must be fully decriminalised and dealt with by proportionate civil sanctions only. Moreover, anti-terror and security laws should not unduly interfere with the right of the press to impart information of public interest and the right of people to receive it.

• Protection of sources must also be better ensured. Though this is not an absolute right, the ECHR clearly accords ‘the broadest scope of protection’ to the press. Interference with this right must therefore be narrowly defined and ‘justified by an overriding requirement in the public interest’.

• More efforts have to be made to preserve media diversity and pluralism. This includes providing adequate public resources to support media outlets without compromising editorial independence, and enforcing laws and transparency regulations on media ownership.

• Political attitudes towards journalists must also change. Policy- and opinion-makers, as well as public personalities, must always condemn violence against journalists and accept a higher degree of public criticism and scrutiny, refraining from violent or intimidating reactions. This is crucial to help the press operate freely.

• Finally, the press has to do its bit too. It has to ensure accountability and stamp out unethical and illegal journalistic behaviour. If the press wants to remain free and avoid undue state interference, it has to produce the necessary antidote to media abuses itself, in particular concerning hate speech and violation of privacy. To get there, self-regulatory bodies can build on the different codes of conduct established in almost all countries, but also on the case law of the European Court of Human Rights, which establishes that freedom of expression is not an absolute right and comes with limits.

It is dismaying that 21st-century Europe still needs such recommendations. However, this deplorable situation should not weaken our determination to defend a free press. By defending journalists’ safety and preserving a free, diverse and responsible press we make democracy stronger.

Nils Muižnieks

Transatlantic Relations: A European Perspective, The Regent’s Report 2014 (page 98)