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I. INTRODUCTION 4
II. FREEDOM OF EXPRESSION: UNDERLYING PRINCIPLES AND SOURCES 4
A. The importance of freedom of expression 4
B.Why is freedom of expression important? 8
C.Freedom of expression and media freedom 11
D.How may freedom of expression be legitimately limited? 12
III. REGULATING THE MEDIA 19
A.Should journalists be licensed? 19
B.But shouldn’t journalists have certain minimum qualifications? 20
C.If a journalist commits a grave offence, shouldn’t he or she be barred from practising? 21
D.There isn’t room for everyone in the press gallery of parliament – who decides who will be allowed in? 21
UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, Joint Declaration on regulation of the media, restrictions on journalists and investigating corruption, 18 April 2003. 22
A.Is the internet the same as any other publishing medium? 30
B.Where is the internet? 31
C.Is the intermediary a publisher? 32
D.Are bloggers journalists? 34
V. PROTECTION OF POLITICAL SPEECH AND CRITICISM OF PUBLIC OFFICIALS 36
A.Criticism of public officials 38
B.Insult to institutions 42
C.The press as public watchdog 44
D.Privilege for members of parliament and reporting statements made in parliament 46
VI. DEFAMATION 48
A.What is defamation? 48
B.Criminal defamation 48
C.Civil defamation 51
D.Can a true statement be defamatory? 51
E.The right to protection against attacks on reputation? 53
F.What is the right way to deal with defamation? 54
G.Types of defamatory material 55
VI. PRIVACY 64
A.Privacy in international law 64
B.Privacy in national law 65
C.Breaching privacy by covert means 67
D.What are the limits of privacy? 68
E.Privacy and medical confidentiality 72
VIII. NATIONAL SECURITY 75
A.The derogation process under international and regional human rights treaties 75
B.Limiting media freedom on grounds of national security 77
C.The scope of national security 77
E.Prescribed by law 81
F.Necessary in a democratic society 82
G.Prior restraint in national security cases 84
IX. MEDIA FREEDOM AND JUDICIAL PROCEEDINGS 87
A.Reporting current criminal investigations 90
B.Reporting court proceedings 91
C."Trial by media" 92
D.Protection of privacy of participants 95
E.Criticism of judges (and other lawyers) 97
X. PROTECTION OF SOURCES 101
A.What if the "journalist" is a blogger or a "citizen journalist"? 104
B.Are there exceptions to the right to protect sources? 104
C.What if the authorities don't bother going to court – but just raid the journalist's premises? 105
XI. HATE SPEECH AND INCITEMENT 108
A. Was "hate speech" intended to incite? 110
B. Must violence or hatred actually result? 112
C. The danger of vagueness 113
D.Advocacy of genocide and Holocaust denial: a special case? 113
E.Religious defamation 115
XII. PHYSICAL SAFETY OF JOURNALISTS 119
XIII. HOW CAN INTERNATIONAL HUMAN RIGHTS LAW BE APPLIED IN NATIONAL COURTS? 126
A.What about case law from other jurisdictions? 128
This manual has been produced as a resource material for training workshops on media and freedom of expression law. It contains resources and background material to help trainers prepare and participants to understand the issues being discussed.
It is expected that participants in the workshops will be primarily lawyers. The assumption is that they are qualified and competent lawyers, with experience of litigation, but not necessarily of media, freedom of expression or human rights law.
The manual covers a wide variety of topics and it is not, of course, necessary that its entire contents be covered in a single workshop. However, it is expected that the material here could be covered in its entirety, albeit in a very introductory fashion, in a full three-day workshop.
The purpose of this manual is threefold:
It can be used by trainers to prepare the workshops. The material contained here should give all that is necessary to run an introductory workshop on freedom of expression and media law.
It can be used by participants to prepare for a workshop. Experience in adult pedagogy shows that learning is most effective when it focuses on developing and practising skills rather than attempting to impart knowledge. If participants are familiar with some of the general principles outlined here, training exercises will be more effective.
The manual is available to participants to use as a reference guide after the workshop. The manual contains guidance and reference to case materials that will be useful for understanding the principles of freedom of expression and media law and preparing litigation in the future.
At a national level, each topic will usually also address the status of national law on any given topic – defamation, incitement, privacy etc. What are generally presented in this manual are the international law standards and the most progressive comparative law from a variety of jurisdictions. Of course, national governments and courts may often not comply with the most progressive standards contained here – so it is important that journalists do not understand this manual as a statement of the rights they can expect to enjoy under national law. Trainers using this manual should be very clear on that and indicate in which respects national law differs from the international standards described here.
What we do hope, however, is that the contents of this manual will help the process of informing litigators and national courts of the most advanced jurisprudence and standards in defence of media freedom. We also hope it will equip lawyers who want to bring media freedom cases to international courts with the arguments needed to do so.