Dirk Voorhoof | University of Ghent

1. Freedom of Expression and Information
Media Freedom and
Investigative Journalism
under the European Human Rights System
Prof. dr. Dirk Voorhoof
Florence EUI
2 June 2014
www.psw.ugent.be/dv

2. MIKKELSEN and CHRISTENSEN
v. DENMARK 2011
Firework case - Investigative Journalism
Documentary about illegal firework in DK

3. Background/ratio
The Firework Act was amended following a dramatic accident
that happened at a fireworks factory in Denmark
November 2004 (Kolding)
- 800 gross tons of fireworks exploded
- A fireman died during fire extinguishing operation
- 80 civilians injured
- 12 industrial buildings destroyed and 355 houses damaged
http://www.youtube.com/watch?v=nb8sxJbRakU
See also Enschede, the Netherlands 3 May 2000 http://www.youtube.com/watch?
v=tew4oHz_Fow

4. Denmark Fireworks Act, no. 193 of 24 May 1972
Amended by Act no. 1060 of 9 November 2005
Section 2
(1) Fireworks and other pyrotechnical articles may not be
transferred, acquired or used without permission from the
municipal council
…
Section 7
(1) Any person who violates section 1, subsection1 or section
2, subsection 1, 2 or 3, or disregards the duty of
disclosure under section 4, subsection 2 is liable to
punishment by a fine, or in aggravating circumstances, by
imprisonment for a term not exceeding two years
…

5. Why journalists claim ‘rights’ to breach the law?
(..)
UNDERCOVER, HIDDEN CAMERA, FALSE IDENTITY, TRESPASSING,
CHECK-IT-OUT, ‘PAYING’ SOURCES, PROCESSING PERSONAL
DATA, CONFIDENTIAL or SECRET INFORMATION, HACKING…

6. What are the limits?
What are the conditions to breach the law?
“Public interest” : issue important for society
No other ways to reveal facts / abuses / illegalities
Risk control (for journalists, for others)
Must be well prepared, editorial policy/monitoring
Proportionate
Professional ethics

7. DR-journalists convicted : criminal offence
City Court : Journalists convicted of having acquired and transported
illegal fireworks without permission from the municipality
Breach of Section 7 of the Fireworks Act
Fine 1.000 Euro, each.
High Court : the protection of the freedom of expression under Article
10(1) does not imply a general exemption for the applicants as
journalists from the duty to observe applicable criminal law provisions
Compelling safety considerations
Journalists had no permission to acquire and transport the fireworks
DR-journalist lodged application in Strasbourg (ECtHR), invoking a
breach of their right to news gathering as investigate journalists as
protected by Article 10 ECHR

8. The European Court of Human Rights:
fines justified
Journalist were not hindered in broadcasting the programme
Legislation on fireworks is based on safety considerations
Journalists were no certified pyrotechnicians: irresponsable risk
Offence in question could have had very serious consequences if
the fireworks had detonated by accident during transportation
Possibility of purchasing illegal firework could have been
demonstrated in another way
Unlawful acts, justifying interference by authorities
Fine (no imprisonment)
Interference, but no violation of Article 10 ECHR

9. Is the ECtHR neglecting the needs and
importance of investigative journalism
in this case?
How is investigative journalism related to
responsible journalism?
Shouldn’t the law ultimately serve the
interests of society?

10. What can (investigative) journalists
expect from the European Court of
Human Rights?
What is the impact of the ECHR and
of the case law of the ECtHR on
journalistic practices in Europe?
Is there a European standard of
protection for media freedom
and journalism?

11. Towards
a European Constitutional Dimension
of
Freedom of Expression,
Media Freedom and
Investigative Journalism
Five examples

12. Jersild v. Denmark (1994)
Programme ‘Jersild’ - DR
Upcoming racism
Greenjackets
Interviews = hate speech
Journalist also convicted
ECtHR
Violation Art. 10 ECHR
Intention
Context
Interview
Format

13. Özgür Gündem v. Turkey (2000)
Journalists of Turkish newspaper
Harrased, assaulted, killed
Prosecutions, confiscations
and convictions
ECtHR
Violation Article 10
State has positive obligations (art. 2 and 3 ECHR)
- to protect journalists against violence
- to investigate crimes against journalists
+ also Gongadze v. Ukraine (2005) and Dink v. Turkey (2010)

14. Fattulayev v. Azerbaijan (2010)
Convicted for defamation, threat of terrorism
8 years and 6 months imprisonment
Violation of Article 10 ECHR
ECtHR ordered immediate release of journalist
sentenced to imprisonment for criticising the
government and opposing in his articles certain
military operations
http://humanrightshouse.org/Articles/16495.html

15. Mosley v. the UK (2011)
ECtHR : No duty of prior notification (Art. 8)
Such a duty would amount
to a violation of Article 10
A pre-notification requirement
would also affect political reporting
and serious journalism
Risk of chilling effect !
See also Wizerkaniuk v. Poland (2011)
: (no) right of prior verification

16. Axel Springer v.
Germany 2012
Articles in BILD about the arrest and conviction of a well known
television actor (X.) for the possession of drugs (Der Kommissar)
The German courts held that the actor’s right to protection and his
personality rights prevailed over the public’s interest in being
informed, even if the truth of the facts had not been disputed.
An injunction was granted against BILD
ECtHR (GC) : violation of Article 10 !

17. Art. 10 = Freedom of expression
without interferences
by public authorities
Under scrutiny of European Court of Human Rights (ECtHR)
+ Committee of Ministers (execution)
47 member states
included all 27 EU (CJEU - FRA)
48 soon?

18. The last 35 years,
since Sunday Times v. UKSunday Times v. UK (1979),
the ECtHR has undoubtedly created an added value to
freedom of expression and information, particularly in
relation to journalism and media content.
ECtHR found 544 violations of Article 10 ECHR

19. Violations Article 10 ((1959)1979-2013)
- Italy, Slovak Rep, The Netherlands 7
- Ukraine 9
- Bulgaria and Greece 10
- Hungary and United Kingdom 11
- Switzerland 13
- Moldova 17
- Finland and Portugal 18
- Poland and Romania 21
- Russia 25
- France 30 Norway 5, Belgium 4, Sweden 2
- Austria 34 Denmark and Iceland 1
- Turkey 224
Source : ECtHR Annual Report 2013, 2014
CAVEAT ! (Albania, Azerbaijan, Spain, B&H, Serbia …)

20. Article 10 ECHR
“Europe’s First Amendment”
10.1. Everyone has the right to freedom of expression
Freedom to hold opinions
To express, impart and receive information and ideas
+ without interference by public authority
+ regardless of frontiers.
Licensing system for broadcasting, television/cinema
10.2 Duties and responsibilities
> formalities, conditions, restrictions or penalties
1. Prescribed by law
2. Legitimate aim (..)
3. Necessary in a democratic society

21. Characteristics of Article 10 ECHR
Freedom of expression and information
related with/in function of public interest & democracy
The public’s right to be properly informed
The public watchdog-function of the media
Matters of public interest and political speech
News gathering protected
Journalists have right to be provocative/exaggerate
Breach of law can be justified (public interest)
Decriminalisation of defamation, no prison sentence
Risk of ‘chilling effect’

22. Article 10 ECHR and media/journalism
In principle no interferences by public authorities,
including the judiciary!
Pertinent and proportional character of interferences
must be demonstrated – pressing social need / necessary in a democracy
- Total lack of factual basis of allegations / defamation
- Intrusion of privacy, without public interest
- Incitement to violence / ‘hate speech’ / terrorism

23. ECtHR does not want to protect idle gossip
about the privacy of persons or celebrities
merely serving to satisfy the curiosity
of a certain readership
and not contributing to any public debate
in which the press has to fulfil
its role of “public watchdog”
But high level of protection
of freedom of political speech,
investigative journalism
and journalistic reporting
about matters of public interest

24. Examples of “public watchdog”-function
Thorgeir Thorgeirson v. Iceland
Article in newspaper
‘members of police units Reykjavik = wild beasts in uniform’
Intention was investigation into alleged violent behaviour of some
metropolitan police units
Clear matter of public interest
Conviction because of defamation was not necessary in a
democratic society
Violation of Article 10

25. Fressoz & Roire v. France
Publication of tax files
In principle journalists are not above the
law, but
… the interest of the public can be more
important than enforcement of
criminal law
Case showed that conviction of
journalists for breach of professional
secrecy and using illegaly obtained
document was a violation of their
freedom of expression
Violation of Article 10

26. Bladet Tromsø and Stensaas v. Norway
Article in newspaper revealing that
crew members of vessel were involved in illegal seal hunting
Intention was to instigate further investigation into illegal
activities of seal hunting.
Allegations relied on leaked, unfinished secret report
and concerned a clear matter of public interest
In such circumstances priority is to be given to freedom of
expression and the right of the public to be informed about
these matters
Conviction because of defamation was not necessary in a
democratic society
Violation of Article 10

27. Radio Twist v. Slovakia
Broadcasting of illegally recorded tapes of conversation
between State Secretary at the Ministry of Justice and the
Deputy Prime Minister
Integrated in radio programme as evidence of political
dispute and struggle about the privatisation of a major
national insurrance provider
No indication that the journalists acted in bad faith or that
they pursued any objective other than reporting on matters
which they felt obliged to make available to the public
Again conviction was not necessary in a democracy
Violation of Article 10

28. New dimensions
Broadening the scope of Article 10
Relevance for investigative journalism
1. Protection of journalistic sources
2. Whistle blowing
3. Access to information

29. Protection of sources under umbrella of
freedom of expression?
Article 10 ECHR contains no reference to freedom to
seek information, no reference to protection of
journalistic sources
Situation in European countries is very different, practice
shows very often no or only low level of legal POJS
…

30. European Court 27 March 1996
Goodwin v. UK
Protection of sources is basic condition for press freedom
“Without such protection sources may be deterred
from assisting the press in informing the public on
matters of public interest”
Article 10 guarantees journalists a right to refuse to reveal
their sources, unless there is “an overriding requirement
in the public interest”
Judicial order to reveal the journalist’s source in casu was
breach of Article 10 Convention

31. 1/ Goodwin v. UK
27 March 1996
2/ Roemen and Schmit v. Luxembourg
25 February 2003
3/ Ernst and others v. Belgium
15 July 2003
4/ Voskuil v. Netherlands
22 November 2007
5/ Tillack v. Belgium
27 November 2007
6/ Financial Times v. UK
15 December 2009
Case law POJS
7/ Sanoma Uitg. B.V. t. The Neth. GC
14 September 2010
8/ Martin ao v. France
12 April 2012
9/ Ressiot ao v. France
28 June 2012
10/ Telegraaf (..) v. the Netherlands
22 November 2012
11/ St Paul Luxembourg SA v. Lux.
18 April 2013
12/ Nagla v. Latvia
16 juli 2013

32. Roemen & Schmit v. Luxembourg
ECtHR 25 February 2003
Journalist reported on tax evasion by former Minister
(based on leak within tax administration)
ECtHR : Searches even greater treath to freedom of
expression of journalists than an order to reveal
information.
Violation of Article 10 (Journalist)
Violation of Article 8 (Lawyer)

33. Ernst and others v. Belgium
ECtHR 15 July 2003
Leaks in serious criminal cases under investigation
Searches at newsdesks and in head offices of
Le Soir, Le Soir Illustré, RTBF
Searches in private homes of journalists
“Fishing operation”
Violation Article 10

34. Tillack v. Belgium
ECtHR 27 November 2007
Journalist suspect of having bribed EU civil servant,
investigation breach of professional secrecy (OLAF)
Searches and confiscation (pc, documents, mobile)
A journalist’s right not to reveal her or his sources could not be
considered a mere privilege to be granted or taken away
depending on the lawfulness or unlawfulness of their sources,
but is part and parcel of the right to information, to be treated
with the utmost caution.
Action against journalist based on vague rumours.
Searches/confiscation: disproportionate measures.
Violation Article 10

35. Sanoma Uitg. B.V. v. The Netherlands
Grand Chamber 14 September 2010
The right to protect journalistic sources should be
safeguarded by sufficient procedural guarantees,
including the guarantee of an ex ante review by a
judge or other independent and impartial decision-
making body, before the police or the public
prosecutor have access to information capable of
revealing such sources.
Violation Article 10

36. Nagla v. Latvia
ECtHR 16 July 2013
Search by police / PP for leak within
State Revenue Service (data base)
Confiscation of PC, hard disk, flash drives
A chilling effect will arise wherever journalists are seen
to assist in the identification of anonymous sources.
The search warrant was drafted in such vague terms as
to allow the seizure of “any information” pertaining to
the crime under investigation allegedly committed by
the journalist’s source.
Violation Article 10

37. POJS is not absolute !
Nordisk Film A/S v. Denmark
Undercover journalist
Child abuse, pedophaelia
Footages ‘interview’ – no ‘sources’
Art. 3 ECHR
Major crime

38. Problems
- Journalists are often not aware of being surveilled,
hacked or ‘tapped’
- ‘Invisible’ practices by national Security and
Intelligence Agencies + lack of judicial review
- Practices by NSA
+ secret contacts with national authorities
and IT-firms in Europe

39. POJS and liability of journalist
accused of defamation
No misunderstanding:
Right of POJS is by no way a derogation for liability in defamation case
If journalist is sued in court and has no reliable evidence for allegations
he/she risks to be convicted or held liable for defamation
- it is no sufficient defence referring to an anonymous source
- journalist can not shield him/her self behind
a non identified source in order to escape liability
But court should accept any other evidence or factual basis in support of
the allegations published by a journalist
Aim remains protecting whistleblowers
POJS is not a shield to escape from liability as a journalist

40. Article 10 also directly
protects whistle-blowers
Signalling by a civil servant, an employee in the public sector
or and employee in the private sector of illegal conduct or
wrongdoing in the workplace is protected under freedom
of expression
Guja v. Moldova (GC) 12 February 2008 (PP office press officer)
Kayasu v. Turkey 13 November 2008 (PP)
Frankowicz v. Poland 16 December 2008 (doctor)
Marchenko v. Ukraine, 19 February 2009 (teacher, trade unionist)
Kudeshkina v. Russia 26 February 2011 (judge)
Heinisch v. Germany, 21 July 2011 (geriatric nurse)
Sosinowska v. Poland, 18 October 2011 (doctor)
Bucur and Toma v. Romania, 8 January 2013 (military unit RIS)

41. Guja v. Moldova (2008)
Whistleblower case
Mr. Guja = head of communication of Public Prosecutor’s office
He leaked a letter to the media
Letter gave evidence of influence by a Minister on Public
Prosecutor and administration of justice in a corruption case
Mr. Guja was dismissed because of breach of duty of
professional secrecy
QUESTION
Can ‘whistleblower’ invoke freedom of expression
If NO: why not?
If YES: under which conditions/criteria?

42. Guja v. Moldova
Whistleblower case
Signalling by a civil servant or an employee in the public sector of
illegal conduct or wrongdoing in the workplace is protected
under freedom of expression.
Conditions/criteria?
1. No alternative channels for the disclosure
(+ effective + protection of whistleblower)
2. Public interest in the disclosed information
3. The authenticity of the disclosed information
(+ accurate/reliable)
4. Justifiable damage to employer/administration
5. Whether the applicant acted in good faith
(motif = public interest)
6. The severity of the sanction (+ consequences)

43. Bucur and Toma v. Romania
(8 January 2013)
Employee in military unit of
Romanian Intelligence Services (RIS/SRI).
Bucur disclosed serious irregularities of telephone tapping
of journalists and politicians by SRI
Two year suspended prison sentence
ECtHR: violation Article 10

44. However
no violation Article 10
in case of
Grigory Pasko v. Russia (2009)
Military journalist, researcher
Disclosed dumping nuclear waste by Russian Navy
Found in possession
of classified information
in airport
Convicted for treason through espionage for having collected
secret information with the intention of transferring it to a
foreign national. Four years in prison.

45. Grigory Pasko v. Russia (2009)
ECtHR : “as a serving military officer, the
applicant had been bound by an obligation of discretion in
relation to anything concerning the performance of his duties”
“Right balance of proportionality between the aim to protect
national security and the means used for that, namely the
sentencing of the applicant to a lenient sentence, much lower
than the minimum stipulated in law”.
Manning and Snowden protected under Article 10 ECHR?
Evolution case law: Pasko 2009 and Bucur and Toma 2013?

46. Europe and the protection of whistleblowers
The reality in most countries in Europe is that under
current law, employees who engage in effective
whistleblowing have no legal protections from a
retaliatory termination of their employment
(+ risk criminal prosecution)
http://www.whistleblower.org/storage/documents/TheCurrentStateofWhistleblowerLawinEurope.pdf
Council of Europe : PACE requests for action -
Resolution 1729(2010)
Recommenation CM/Rec(2014)7 of 30 April 2014
https://wcd.coe.int/ViewDoc.jsp?
Ref=CM/Rec(2014)7&Language=lanEnglish&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=E
DB021&BackColorLogged=F5D383

47. Recommenation CM/Rec(2014)7 of 30 April 2014
on the protection of whistleblowers
8 principles
1. Material scope
“at least” include violations of law and human rights, as
well as risks to public health and safety and to the
environment.
2. Personal scope
Private - public
3. Normative framework
Stimulate + effective procedures

48. Recommenation CM/Rec(2014)7 of 30 April 2014
on the protection of whistleblowers
8 principles
4. The channels for reporting and disclosures:
- reports within an organisation or enterprise (..);
- reports to relevant public regulatory bodies, law
enforcement agencies and supervisory bodies;
- disclosures to the public, for example to a
journalist or a member of parliament.
(..) Confidentiality/anonymity; protection against
retaliation; promoting, facilitating, assessments…

49. Article 10 ECHR and
access to information

50. New approach by European Court
Access to official documents protected under Article 10
+ effective remedies must exist to enforce this right
TASZ v. Hungary (2009)
access to official documents refused
TASZ = Hungarian Civil Liberties Union
Kenedi v. Hungary (2009)
access refused to archives regarding functioning in the past
of secret police and secret services
In both cases violation of Article 10 ECHR

51. TASZ v. Hungary
The State's obligations in matters of freedom of the press include
the elimination of barriers to the exercise of press functions
where, in issues of public interest, such barriers exist solely
because of an information monopoly held by the authorities.
The function of the press includes the creation of forums for
public debate.
The realisation of this function is not limited to the media or
professional journalists (also other forums, NGO’s, …)

52. Art. 10 ECHR and FOI :
most recent cases
Youth Initiative for Human Rights v. Serbia
25 June 2013
NGO requested the intelligence agency of Serbia to provide it with
some factual information concerning the use of electronic surveillance
measures by that agency. Agency refused.
After an order by the Information Commissioner that the information at
issue should be disclosed under the Serbian Freedom of Information Act
2004, the intelligence agency notified the applicant NGO that it did not
hold the requested information.

53. Art. 10 ECHR and FOI :
most recent cases
Youth Initiative for Human Rights v. Serbia
ECtHR affirms that the notion of “freedom to receive information”
embraces a right of access to information.
The refusal to give access to public documents did not meet the criterion
as being prescribed by law.
The Court comes to the conclusion that the “obstinate reluctance of the
intelligence agency of Serbia to comply with the order of the Information
Commissioner” was in defiance of domestic law and tantamount to
arbitrariness, and that accordingly there has been a violation of Article
10 of the Convention.

54. Art. 10 ECHR and FOI :
most recent cases
Youth Initiative for Human Rights v. Serbia
ECtHR : NGO can play a role as important as that of the press in a
democratic society
Refusal was violation Article 10
Court ordered the Serbian State to ensure, within three months the
intelligence agency of Serbia to provide the applicant NGO with the
information requested !!

55. Art. 10 ECHR and FOI :
most recent cases
Österreichische Vereinigung zur Erhaltung, Stärkung
und Schaffung eines wirtschaftlich gesunden land- und
forstwirt-schaftlichen Grundbesitzes v. Austria
28 November 2013
NGO, the Austrian association for the preservation, strengthening and
creation of an economically sound agricultural and forestry land
ownership (OVESSG) was refused access to decisions of Commission
responsible for approving agricultural and forest land transactions.
Argument : would require so many resources that the Commission
functioning would be affected and would jeopardise the fulfilment of the
Commission’s other tasks

56. Art. 10 ECHR and FOI :
most recent cases
Österreichische Vereinigung zur Erhaltung, Stärkung und
Schaffung eines wirtschaftlich gesunden land- und forstwirt-
schaftlichen Grundbesitzes v. Austria, 28 November 2013
Refusal to give OVESSG access to the requested documents amounted
to an interference with its rights under Article 10, as the association was
involved in the legitimate gathering of information of public interest
with the aim of contributing to public debate.
The Court refers to its case-law stating that the most careful scrutiny
was called for when authorities enjoying an information monopoly
interfered with the exercise of the function of a social watchdog

57. Art. 10 ECHR and FOI :
most recent cases
Österreichische Vereinigung zur Erhaltung, Stärkung und
Schaffung eines wirtschaftlich gesunden land- und forstwirt-
schaftlichen Grundbesitzes v. Austria, 28 November 2013
Commission had not given sufficient reasons to justify its refusal to grant
OVESSG access to the requested documents.
It had chosen not to publish its decisions and thus, by its own choice,
held an information monopoly.
The unconditional refusal by the Commission thus made it impossible for
OVESSG to carry out its research and to participate in a meaningful
manner in the legislative process concerning amendments of real
property transaction law in Tyrol.
Violation Article 10

58. WOBBING
A challenge for (investigative) journalists !
National law
+ Article 10 extra dimension
Scrutiny ECtHR

59. Pentikaïnen v. Finland
4 February 2013
Journalist, reporting about demonstration
Denied police order to leave the scene
Arrested, detained 17 hours, prosecuted and convicted
(no sanction)
ECtHR : no violation Article 10
Media as watchdog?
Facilities for embedded journalism sufficient?
Case referred to Grand Chamber
Support + IJF/EJF – 3 May 2014
Panel 2 June 2014 !
http://www.ifj.org/nc/news-single-view/backpid/66/category/europe-1/article/countdown-to-wpfd-2014-request-for-hearing-for-finnish-journalist-pentikaeinen/

60. JOURNALISM and the LAW
- AWARENESS (rights and restrictions)
- ASK ASSISTENCE
- USE RIGHTS FoE / FOIA
- REPORT ABOUT IT
- ADVOCATE
- COME UP FOR YOUR RIGHTS
- YOU’RE NOT ALONE
- MEDIA = TOOL
- DON’t GIVE UP TOO FAST …
(Jersild, Fattulayev, Bucur … Pentikäinen.)

61. R. Ó FATHAIGH and D. VOORHOOF
“The European Court of Human Rights, Media Freedom and Democracy”
M. PRICE, S. VERHULST and L. MORGAN (eds.), Routledge Handbook of Media
Law, New York, Routledge, 2013, 107-124.
D. VOORHOOF
“The protection of journalists’ sources under fire? How Developments in European
Human Rights Law have Reinforced the Right of Journalists to have their Sources
Protected”, EFJ-website, September 2012,
http://europe.ifj.org/assets/docs/147/154/9355293-0d86c9a.pdf
Iris Newsletter - http://merlin.obs.coe.int/newsletter.php
D. VOORHOOF, Freedom of Expression, the Media and Journalists. Case law of the
European Court of Human Rights, Strasbourg, European Audiovisual Observatory,
Iris, 2013, with T. Mc Gonagle (ed.), 404 p., E-Book.
http://www.obs.coe.int/documents/205595/2667238/IRIS+Themes+III+
(final+9+December+2013).pdf/2e748bd5-7108-4ea7-baa6-59332f885418