States regulate the print media and printed works in a variety of ways, including some widely understood to be illegitimate, such as prior censorship and licensing of newspapers, and others which are generally accepted, such as through a technical registration system.
In the following case, Laptsevich v. Belarus , Mr Laptsevitch was handing out 200 leaflets he had printed devoted to the anniversary of the proclamation of the independence of the People’s Republic of Belarus. While distributing the leaflets in the Mogilev city centre, he was approached by officers of the local Internal Affairs Department who confiscated the remaining 37 leaflets. He was then charged with the offence of disseminating a publication that was not registered and therefore did not bear required publication data such as an index number. He was fined 390,000 roubles by the Administrative Commission; appeals to the Regional Court and Supreme Court were dismissed.
Human Rights Committee
Communication No. 780/1997
Views of 20 March 2000
Keywords: expression - public order - rights or reputations of others
Issues and proceedings before the Committee
8.1 The first issue before the Committee is whether or not the application of article 26 of the Press Act to the author’s case, resulting in the confiscation of the leaflets and the subsequent fine, constituted a restriction within the meaning of article 19, paragraph 3, on the author’s freedom of expression. The Committee notes that under the Act, publishers of periodicals as defined in article 1 are required to include certain publication data, including index and registration numbers which, according to the author, can only be obtained from the administrative authorities. In the view of the Committee, by imposing these requirements on a leaflet with a print run as low as 200, the State party has established such obstacles as to restrict the author’s freedom to impart information, protected by article 19, paragraph 2.
8.3 The Committee notes that the author has argued that article 172(3) of the Administrative Offences Code does not apply to him and that the sanctions thus were unlawful and constituted a violation of article 19 of the Covenant. The Committee is, however, not in a position to reevaluate the findings of the Belorussian courts with regard to the applicability of the said provision, which appears to leave room for interpretation (see paragraph 3.2 supra). Nonetheless, even if the sanctions imposed on the author were permitted under domestic law, the State party must show that they were necessary for one of the legitimate aims set out in article 19, paragraph 3.
8.4 In the very brief submission of the State party set out in paragraph 5.2 supra, it is implied that the sanctions were necessary to protect national security, as reference is made to the contents of the author’s writings. There is, however, nothing in the material before the Committee which suggests that either the reactions of the police or the findings of the courts were based on anything other than the absence of necessary publication data. Therefore, the only issue before the Committee is whether or not the sanctions imposed on the author for not including the details required by the Press Act can be deemed necessary for the protection of public order (ordre public) or for respect of the rights or reputations of others.
8.5 In this regard, the Committee notes that the State party has argued that the requirements set out in article 26 of the Press Act are generally in full compliance with the Covenant. It has not, however, made any attempt to address the author’s specific case and explain the reasons for the requirement that, prior to publishing and disseminating a leaflet with a print run of 200, he was to register his publication with the administrative authorities to obtain index and registration numbers. Furthermore, the State party has failed to explain why this requirement was necessary for one of the legitimate purposes set out in article 19, paragraph 3, and why the breach of the requirements necessitated not only pecuniary sanctions, but also the confiscation of the leaflets still in the author’s possession. In the absence of any explanation justifying the registration requirements and the measures taken, it is the view of the Committee that these cannot be deemed necessary for the protection of public order (ordre public) or for respect of the rights or reputations of others. The Committee therefore finds that article 19, paragraph 2, has been violated in the present case.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to theInternational Covenant on Civil and Political Rights , is of the view that the facts before it disclose a violation of article 19, paragraph 2, of the International Covenant on Civil and Political Rights.
10. Under article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide Mr. Laptsevich with an effective remedy, including compensation amounting to a sum not less than the present value of the fine and any legal costs paid by the author. The State party is also under an obligation to take measures to prevent similar violations in the future.
Selected additional cases: ECHR Bowman v. The United Kingdom , Application No. 24839/94, Judgment of 19 February 1998.
In the following case, Gaweda v. Poland , the Polish courts dismissed the applicant’s request to register the titles of two periodicals he wished to publish. According to the court, the title of one of the publications would be misleading to potential readers while the title of another would be harmful to international relations. At the time, Polish law required the titles of periodicals to be registered by the judiciary prior to their publication. In both cases, the court offered the applicant the opportunity to change the titles so that the periodicals might be published. The applicant refused. The applicant unsuccessfully appealed both decisions.
European Court of Human Rights
Application No. 26229/95
Judgement of 14 March 2002
Keywords: expression- journalism
B. The Court’s assessment
36. The Court first observes that under Polish law the court’s refusal to register the title of a periodical amounts to prohibiting its publication.
37. Consequently, the Court considers that the refusals of registration complained of amounted to an interference with the applicant’s rights guaranteed by Article 10 of the Convention. Such an interference gives rise to a breach of this provision unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aims as defined in paragraph 2 and was “necessary in a democratic society”.
38. It must first be ascertained whether the restriction complained of was “prescribed by law”.
39. The Court observes that one of the requirements flowing from the expression “prescribed by law” is the foreseeability of the measure concerned. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able &ndash if need be with appropriate advice &ndash to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail [?].
40. The Court considers that, although Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publications [?], the relevant law must provide a clear indication of the circumstances when such restraints are permissible and, a fortiori, when the consequences of the restraint are to block publication of a periodical completely, as in the present case. This is so because of the potential threat that such prior restraints, by their very nature, pose to the freedom of expression guaranteed by Article 10.
41. In the present case, the system for the registration of periodicals is governed by the Press Act of 1984. Under section 20 of that Act, a court can refuse registration only if it establishes that the request for registration does not contain various information concerning the prospective periodical or if it finds that it would infringe the right to protection of the titles of any existing periodicals. Section 5 of the Ordinance on the registration of periodicals, as applicable at the material time, provided that registration was not permissible if it would be inconsistent with the regulations in force or “with the real state of affairs”.
42. The courts, when refusing the applicant’s request to have the two periodicals registered, relied essentially on section 5 of the ordinance in so far as it required that the registration be refused if it would be “inconsistent with the real state of affairs”. In its decision of 9 September 1993 the Bielsko-BiaBa Regional Court refused registration considering that the proposed title would suggest that a European institution had been established in Kety, which was clearly not true. On 17 February 1994, in its further decision under scrutiny in the present case, the court considered that the registration of a periodical entitled Germany &ndash A thousand-year-old enemy of Poland would be inconsistent with the real state of affairs in that it unduly concentrated on negative aspects of Polish-German relations and thus gave an unbalanced picture of the facts.
43. As is clear from the above, the courts in the present case inferred from the notion “inconsistent with the real state of affairs” contained in section 5 of the ordinance a power to refuse registration where they considered that a title did not satisfy the test of truth, i.e. that the proposed titles of the periodicals conveyed an essentially false picture. While the terms used in this limb were ambiguous and lacked the clarity that one would expect in a legal provision of this nature, they suggested at most that registration could be refused where the request for registration did not conform to the technical details specified by section 20 of the Press Act. To go further, as the courts did in the present case, and require of the title of a magazine that it embody truthful information, is, firstly, inappropriate from the standpoint of freedom of the press. The title of a periodical is not a statement as such, since its function is essentially to identify the given periodical on the press market for its actual and prospective readers. Secondly, such interpretation would require a legislative provision which clearly authorised it. In short, the interpretation given by the courts introduced new criteria, which could not be foreseen on the basis of the text specifying situations in which the registration of a title could be refused.
44. The Court also notes the Government’s argument that a legal provision may pass the quality test if it is sufficiently clear in most of the cases determined by the domestic bodies. They further argued that the case-law of the Polish courts in most registration cases had not given rise to any particular interpretation problems.
45. However, the task of the Court is only to assess the circumstances of the individual case before it. It is observed that previous interpretations of this provision had not provided a basis for the approach adopted by the courts in the present case. Moreover, in the Court’s view, the fact that the case-law of the Polish courts regarding the registration of publications did not show that the provisions at issue were particularly difficult to interpret only highlights the lack of foreseeability of the interpretation given by the courts in the present case.
46. Lastly, the Court notes the Government’s argument that the special merit of the system for the registration of periodicals established by the Press Act was that it was of a judicial character [?]. Therefore the task of registering periodicals was entrusted to independent tribunals.
47. The Court acknowledges that the judicial character of the system of registration is a valuable safeguard of freedom of the press. However, the decisions given by the national courts in this area must also conform to the principles of Article 10. The Court observes that in the present case this in itself did not prevent the courts from imposing a prior restraint on the printed media which entailed a ban on publication of entire periodicals on the basis of their titles.
48. The Court concludes that the law applicable in the present case was not formulated with sufficient precision to enable the applicant to regulate his conduct. Therefore, the manner in which restrictions were imposed on the applicant’s exercise of his freedom of expression was not “prescribed by law” within the meaning of Article 10§ 2 of the Convention. [?]
50. Accordingly, the Court concludes that there has been a violation of Article 10 of the Convention.
Selected additional cases:Goodwin (William) v. The United Kingdom , Application No. 17488/90, Judgement of 27 March 1996.
Some of the most important cases under Article 10 relate to the rights of newspapers to freedom of expression. As the basic function of a newspaper is to publish information and ideas, any issue relating to the restriction of the exercise of this function clearly crosses the ‘exclusive means’ threshold.
In some instances, both the press and the state will argue for the interests of society in order to justify their actions. Such was the issue which faced the Court in the case of the Sunday Times v. The United Kingdom (Application No. 6538/74, Judgement of 26 April 1979). In this case, the applicants had prepared a news article for publication outlining the scientific research and testing procedures followed by a pharmaceutical company prior to its marketing of the sedative thalidomide. The Court addressed the Government’s argument that it had properly balanced two public interests, in freedom of expression and in the fair administration of justice. The Court stated that:
There is general recognition of the fact that the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them.
The European Court also held that the public in general had a right to receive information about the matter, even if the facts and issues formed the background to pending litigation. The Court noted that, by bringing to light certain facts, the article might have served as a brake on speculative and unenlightened discussion.
The European Court often provides a high level of protection to the print media under Article 10, because it sees the press as playing an important role in democratic society, in particular through its fostering of political and other public debate. Barfod v. Denmark , (Application No. 11508/85, Judgement of 22 February 1989), on the other hand, shows that the Court may provide a lesser level of protection to the press where the public debate touches upon the protection of the reputation of others and, indirectly, the maintenance of the authority of the judiciary. Moreover, the European Court found very recently that although freedom of expression also extended to the publication of photographs, this was an area in which the protection of the rights and reputation of others took on particular importance, as it did not concern the dissemination of ‘ideas’, but of images containing very personal or even intimate ‘information’ about an individual. In von Hannover v. Germany (Application No. 59320/00, Judgement of 24 June 2004), the Court considered that the photographs of Princess Caroline von Hannover’s private life made no contribution to a debate of public interest, since the applicant exercised no official function and the photographs and articles related exclusively to details of her private life. The general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as there was a commercial interest for the magazines to publish the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right to the effective protection of her private life.
In its Advisory Opinion No. 5, the Inter-American Court emphasises the important function of the media and journalism, and argues that the profession of journalism is to be distinguished from other professions that may be regulated (for details of the facts, seeWhat is ‘Freedom of Opinion and Expression’?).
Inter-American Court of human Rights
Advisory Opinion No. 5
Opinion of 13 November 1985
Keywords: expression - association - journalism
71. Within this context, journalism is the primary and principal manifestation of freedom of expression of thought. For that reason, because it is linked with freedom of expression, which is an inherent right of each individual, journalism cannot be equated to a profession that is merely granting a service to the public through the application of some knowledge or training acquired in a university or through those who are enrolled in a certain professional “ colegio. “
72. The argument that a law on the compulsory licensing of journalists does not differ from similar legislation applicable to other professions does not take into account the basic problem that is presented with respect to the compatibility between such a law and the Convention. The problem results from the fact that Article 13 expressly protects freedom “ to seek, receive, and impart information and ideas of all kinds? either orally, in writing, in print?. “ The profession of journalism -the thing journalists do- involves, precisely, the seeking, receiving and imparting of information. The practice of journalism consequently requires a person to engage in activities that define or embrace the freedom of expression which the Convention guarantees.
74. It has been argued that what the compulsory licensing of journalists seeks to achieve is to protect a paid occupation and that it is not directed against the exercise of freedom of expression as long as it does not involve remuneration and that, in that sense, it deals with a subject other than that dealt with by Article 13 of the Convention. This argument is based on a distinction between professional journalism and the exercise of freedom of expression that the Court cannot accept. This argument assumes that it is possible to distinguish freedom of expression from the professional practice of journalism, which is not possible. Moreover, it implies serious dangers if carried to its logical conclusion. The practice of professional journalism cannot be differentiated from freedom of expression. On the contrary, both are obviously intertwined, for the professional journalist is not, nor can he be, anything but someone who has decided to exercise freedom of expression in a continuous, regular and paid manner. It should also be noted that the argument that the differentiation is possible could lead to the conclusion the guarantees contained in Article 13 of the Convention do not apply to professional journalists.
75. The argument advanced in the preceding paragraph does not take into account, furthermore, that freedom of expression includes imparting and receiving information and has a double dimension, individual and collective. This fact indicates that the circumstance whether or not that right is exercised as a paid profession cannot be deemed legitimate in determining whether the restriction is contemplated in Article 13( 2 ) of the Convention because, without ignoring the fact that a guild has the right to seek the best working conditions for its members, that is not a good enough reason to deprive society of possible sources of information.
76. The Court concludes, therefore, that reasons of public order that may be valid to justify compulsory licensing of other professions cannot be invoked in the case of journalism because they would have the effect of permanently depriving those who are not members of the right to make full use of the rights that Article 13 of the Convention grants to each individual. Hence, it would violate the basic principles of a democratic public order on which the Convention itself is based.
77. The argument that licensing is a way to guarantee society objective and truthful information by means of codes of professional responsibility and ethics, is based on considerations of general welfare. But, in truth, as has been shown, general welfare requires the greatest possible amount of information, and it is the full exercise of the right of expression that benefits this general welfare. In principle, it would be a contradiction to invoke a restriction to freedom of expression as a means of guaranteeing it. Such an approach would ignore the primary and fundamental character of that right, which belongs to each and every individual as well as the public at large. A system that controls the right of expression in the name of a supposed guarantee of the correctness and truthfulness of the information that society receives can be the source of great abuse and, ultimately, violates the right to information that this same society has.
78. It has likewise been suggested that the licensing of journalists is a means of strengthening the guild of professional journalists and, hence, a guarantee of the freedom and independence of those professionals and, as such, required by the demands of the general welfare. The Court recognizes that the free circulation of ideas and news is possible only through a plurality of sources of information and respect for the communications media. But, viewed in this light, it is not enough to guarantee the right to establish and manage organs of mass media; it is also necessary that journalists and, in general, all those who dedicate themselves professionally to the mass media are able to work with sufficient protection for the freedom and independence that the occupation requires. It is a matter, then, of an argument based on a legitimate interest of journalists and the public at large, especially because of the possible and known manipulations of information relating to events by some governmental and private communications media.
79. The Court believes, therefore, that the freedom and independence of journalists is an asset that must be protected and guaranteed. In the terms of the Convention, however, the restrictions authorized on freedom of expression must be “necessary to ensure” certain legitimate goals, that is to say, it is not enough that the restriction be useful ( supra 46 ) to achieve a goal, that is, that it can be achieved through it. Rather, it must be necessary, which means that it must be shown that it cannot reasonably be achieved through a means less restrictive of a right protected by the Convention. In this sense, the compulsory licensing of journalists does not comply with the requirements of Article 13( 2 ) of the Convention because the establishment of a law that protects the freedom and independence of anyone who practices journalism is perfectly conceivable without the necessity of restricting that practice only to a limited group of the community.
81. It follows from what has been said that a law licensing journalists, which does not allow those who are not members of the “ colegio “ to practice journalism and limits access to the “ colegio “ to university graduates who have specialized in certain fields, is not compatible with the Convention. Such a law would contain restrictions to freedom of expression that are not authorized by Article 13( 2 ) of the Convention and would consequently be in violation not only the right of each individual to seek and impart information and ideas through any means of his choice, but also the right of the public at large to receive information without any interference.
The African Commission has interpreted the right of the press very broadly and has often found a violation of the right to freedom of expression when states parties have restricted the freedom of expression of journalists. In the following case,Constitutional Rights Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria , the applicants claimed that Nigeria confiscated and closed down newspapers without any justification. Moreover, the applicants argued that the national decrees adopted by the Government in 1994 restricted and restrained the right of Nigerians to receive information and to express and disseminate their opinion.
African Commission on Human and Peoples’ Rights
Communication No. 141/94
Thirteenth Activity Report 1999-2000, Annex V.
Keywords: information - participation in government - liberty and security &ndash expression respect for rights in the Charter
SUMMARY OF THE FACTS:
4. Communication 141/94 alleges that the Federal Government of Nigeria, through Decrees Nos. 6, 7, and 8 of 1994, restrained and restricted the right of Nigerians to receive information and to express and disseminate their opinions. [?].
37. The proscription of specific newspapers by name and the sealing of their premises, without a hearing at which they could defend themselves, or any accusation of wrongdoing, legal or otherwise, amounts to harassment of the press. Such actions not only have the effect of hindering the directly affected persons in disseminating their opinions, but also poses an immediate risk that journalists and Newspapers not yet affected by any of the Decree will subject themselves to
self-censorship in order to be allowed to carry on their work.
43. The government has provided no concrete evidence that the proscription was for any of the above reasons given in Article 27(2). It has failed to prove that proscription of the newspapers was for any reason but simple criticism of the government. If the newspapers had been guilty of libel, for example, they could have individually been sued and called upon to defend themselves. There was no substantive evidence presented that the newspapers were threatening national security or public order.
44. For the government to proscribe a particular publication, by name, is thus disproportionate and not necessary. Laws made to apply specifically to one individual or legal personality raise the serious danger of discrimination and lack of equal treatment before the law, guaranteed by Article 3. The proscription of these publications cannot therefore be said to be “within the law” and constitutes a violation of Article 9(2).