|by Wilfred Mamah|
|Published on: Feb 23, 2006|
|Human rights are, as we know them today, the outcome of the historic and collective fight against crude power; against the dictatorship of a few, who abuse their positions to the detriment of others. Media freedom is a crucial right that has been variously described as the cornerstone of democracy. The important question, that is often overlooked when we talk of free speech, is the question of limitation. To what extent should the law protect media freedom? When this freedom derails to the extent of curtailing the freedom of others and causing pain, should the law be expected to protect it? These questions have become very relevant in the context of the recent drawings of the Prophet Muhammad, first published in Jyllands-Posten, a Danish newspaper, last September and recently republished by a number of European and Canadian newspapers.
The cartoons have led to protests, sometimes destructive and deadly, in Europe, Africa, the Middle East and Asia. This article seeks to examine the Danish newspaper cartoons in question in relation to free speech. The article takes the view that the cartoons in question are examples of media irresponsibility and mirror a destructive trend of bad and cruel journalism. This, the article argues, is often caused by inadequate attention in regards to developing compulsory Media law courses at Journalism schools. The article will demonstrate, using decided media law cases, that the publication and republication fall short of what the law protects as freedom of speech.
I will argue that the defense of public interest, (often confused with media selfish interest) cannot provide justification for putting such cartoons in the public realm. In concluding however, this reflection criticizes the resort to self help by those aggrieved by the publication in question and points to a legitimate way of handling such issues within the framework of the European Convention on Human Rights.
Understanding Media Freedom and the place of Journalism in an open society:
Journalism has made several contributions to democratic governance and it could be argued that most of what we know about current events in the world; actions or inactions of our government, or governments abroad is sourced from the media. Journalism has brought down dictatorial and apartheid regimes. Its role can be understood in keeping with the Fourth Estate Model of the press. According to this model, the press should make governments accountable by publishing information about matters of public interest, particularly, if such information reveals abuses or crimes perpetrated by those in authority. From this perspective, investigative reporting is one of the most important contributions that the press makes to democracy. Lord Nicholls, of Great Britain identifies investigative journalism as one of the contemporary functions of the media. This function of the media is linked to the logic of checks and balances in democratic systems. It provides a valuable mechanism for monitoring the performance of democratic institutions as they are most broadly defined to include governmental bodies, and public organizations. The media is arguably, the most vibrant source of information that affects citizens’ lives in a democratic society.
The law, in recognition of the very important role of the media, has consistently sought to provide the enabling environment for the practice of “responsible journalism”. Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 10 of the European Convention on Human Rights (ECHR) are but instances. Article 19 of the UDHR provides as follows:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The ECHR was promulgated barely two years after the UDHR, hence in the preamble to ECHR it was clearly stated that the Convention takes the UDHR into consideration. Article 10 (1) of the ECHR, in furtherance to the Article 19 of the UDHR provides as follows:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
It is important to observe that in the wordings of both the UDHR and ECHR, the operating word is “everyone.” Freedom of expression is a fundamental human right, which every human person, by that singular fact of being a human person, can lay claim to. This right transcends territorial jurisdictions and it is not an exclusive preserve of the press. Individuals and organizations can therefore lay claim to this provision, but the press has been more vigorous in asserting this right for obvious reason: in absence of a legally protected right to freedom of speech, the press and other forms of media would cease to exist.
Interestingly, Judges have variously acknowledged the special need for press freedom. SELISTO v. FINLAND  ECHR 634 (16 November 2004), is the recent case in Europe to stress this importance. The case originated in an application (no. 56767/00) against the Republic of Finland, lodged with the European Court of Human Rights under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish journalist, Ms Seija Selistö, on 9 April 2000. The applicant alleged, in particular, that her conviction for criminal defamation, as a result of a series of articles she published about a surgeon X’s gross medical negligence, violated Article 10 of the Convention, which protects freedom of speech.
In a favorable judgment of the Court, the ECHR re-affirmed its commitment to protect free speech in matters of public interest.
According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress, as well as each individual's self-fulfillment.
Subject to paragraph 2 of Article 10 ECHR, it is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10(2), which must, however, be construed strictly. The need for any restrictions must be established convincingly.
The test of “necessity in a democratic society”, according to the court, requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”; whether it was proportionate to the legitimate aim pursued; and whether the reasons given by the national authorities to justify it are relevant and sufficient (see also the Sunday Times v. the United Kingdom (no. 1) judgment of 26 April 1979). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not however, unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.
The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. In cases such as the present one, the Court states that the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “public watchdog” by imparting information of serious public concern.
So, the central question in this analysis is not the question of freedom of speech, because that 'right' is NOT in doubt. Article 10 makes that clear (albeit with limitations) and the European Court of Human Rights constantly reiterates the point, as we have just seen. The critical issue is HOW and WHEN the media should exercise that right. There needs to be a clear and arguably legitimate reason for publication.
In respect of the Danish cartoons, therefore, where can we locate that legitimate cause for publication? Simply to show that journalists can exercise free speech would not appear to be a good reason to publish. Therefore, at the centre of this debate is whether it was responsible journalism to publish the cartoons knowing of the probable backlash from around the Muslim world. In light of what has happened since the publication, should we not question the judgment of those editors who went to press with the cartoons?
It is no longer in doubt that the enabling laws and judicial pronouncements that endorse freedom of expression are not meant to be blank cheques. There are limitations meant to safeguard other people’s rights and to protect the public good. For instance, Article 10 (2) of the ECHR qualifies freedom of expression under 10(1) by providing for a series of issues, like state security, public health and other people’s freedom, which may justify a breach of free expression. The article reads:
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The critical challenge in understanding the limitations legally imposed on freedom of expression is the interpretation of terms like, “interest of national security”, “territorial integrity” and the “protection of health and morals.” These terms often grouped as issues of “public interest”, (another confusing term) are at the heart of the whole debate around freedom of speech. The interpretation given to those terms will be the determining factor in assessing whether there is media freedom in any particular country or not.
It is not surprising therefore, that the most difficult challenge before journalists and media institutions today is how to walk the thin line between freedom and constraint. Journalistic methods of obtaining information, especially as they impinge on individuals’ governments’ and corporations’ rights to privacy and confidence, have come under very strict scrutiny. The use of subterfuge and harassment in obtaining information, often justified by the media as being in the public interest, is another source of concern and interest; so also is the recent resort to cynicism and vindictive cartoons that practically serve no public interest ends.
If journalism is committed to democratic accountability, then the question that needs to be asked is whether the public benefits as a result of investigative reports that have brought down established institutions of government and business entities. Whose interest do journalists serve by publishing a given story? Does the press fulfill its social responsibility in revealing wrongdoing? Does the public gain anything from cartoons that ridicule people’s religion? Whose interests are being affected? Whose rights are being invaded? Is the issue at stake a matter of public interest, as the media often claims? Or, are people’s privacies, religious preferences, government and corporations’ confidences being invaded when no public interest is at stake? What indeed is public interest and how is it to be distinguished from media’s private pecuniary interests in the face of the growing “commodification” of the news?
Several definitions of public interest have been offered. One definition of the term is that public interest is simply whatever the public is interested in knowing. Another definition is that public interest is whatever is in the interests (to the benefit) of the public to know, or what the public has a right to know. Facts that are in the public interest are reported as part of democratic accountability. To complicate matters further, it is argued that there exist instances, where it might be agreed that something is of public importance or interest, but that it is better for society not to reveal material; in case, for example, panic ensues and undermines public safety.
It is arguable that “public interest” is not a matter susceptible to a straightforward definition or generic categorization. Legislation shies away from defining it. It has been suggested that the main reason for this is that ‘public interest’ is a highly political category that changes with time. ‘Public interest’, it has been observed, suffers the same fate as claiming that something is in the ‘national interest’. Both terms confuse as much as they clarify. Adopting a generic definition of public interest would, therefore, be confusing and grossly limiting. However, the UK’s court of Appeal, Civil Division, per Stephenson, O’Connor and Griffiths LJJ, has offered an invaluable guide, which journalists and media organizations must take very seriously.
The case is Lion Laboratories v. Evans [1984 2 All ER, 417]. In this case the plaintiff company sought and obtained an injunction to restrain its former employees and a national newspaper, “Daily Express” from publishing internal documents of the company, which were obtained through a breach of confidence.
Under the common law, three ingredients are needed to establish a breach of confidence. First, the information must be of a confidential nature. Secondly, the information must have been communicated in circumstances importing an obligation of confidence. The final requirement is the unauthorized use of the information to the detriment of the claimant.
In this case, the documents in question were related to the company’s manufactured instruments used in measuring the level of intoxication by alcohol under the Road Traffic Act. They were clearly marked confidential, and ex-employees came in contact with the documents by way of being employed by the company and having signed a contract of employment, committing to protect the company’s confidence.
The defendants sought to discharge the injunction, on the strength that it was a breach of their right to freedom of expression in matters of public interest. But the judge refused on the reasoning that there was a strong prima-facie case that the defendants had committed an “inexcusable breach of confidentiality.”
The defendants appealed this decision before the Court of Appeal. At the Court of Appeal, a distinction was drawn between what is in the public interest and what interests the public. According to their Lordships;
“There is a wide difference between what is interesting to the public and what is in the public interest to make known. The public are interested in many private matters which are no real concern of theirs and which the public have no pressing need to know.”
That statement is monumental and could be of tremendous aid in testing when freedom of expression derails. We can therefore ask: of what public relevance is a cartoon that sought to depict Prophet Muhammad, carrying bombs? How will that depiction affect collective growth and promote integration, peace and unity in our diametrically changing world?
The Limits to Free Speech:
The public interest test is one way to look at the limitation imposed on free speech. Another way is the responsible journalism test. According to Lord Nicholls in Bonnick v Morris & Ors  UKPC 31 at paragraph 23:
"Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputation of individuals. Maintenance of this standard is in the public interest and in the interest of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege, journalists must exercise due professional skill and care.”
There are several cases under the European system that are based on media irresponsibility. Take the case of Reynolds v Sunday Times Newspaper; a case in which the House of Lords extended the defense a qualified privilege to investigative journalism. Curiously however, Sunday Times Newspaper failed to gain from this defense because the paper was seen to be irresponsible. Its allegation against the ex-Irish Prime Minister, Albert Reynolds, was not carefully researched and presented.
We see the same trend of irresponsibility in the case of George Galloway v Daily Telegraph  EWHC 2786 (QB); and also in Naomi Campbell v. Daily Mirror, which involved the publication of intrusive pictures of the model. In Von Hanover v. Germany, (2005) 40 EHRR, the ECHR had to strike a balance between Articles 8 and 10 of ECHR.
Like the case of Naomi Campbell discussed above, this case involved the publication of pictures of Princess Caroline Von Hanover in different German newspapers.
The photographs in question represented the Princess in her day-to day life and they were taken without her authorization. German Courts held that there was no breach of the Princess’s privacy because of her status as a "figure of contemporary society par excellence."
When the case came before the ECHR, the European Court performed a balancing act between freedom of expression and right to privacy. The court held that, although Princess Caroline Van Hanover was a well known public person, she did not exercise any official function. The Court therefore decided that the general public did not have a legitimate interest in knowing about the Princess’ private life, even if she appeared in public places and was likely to be recognized by the public. The court therefore, considered that there was a breach of Article 8 in the European Convention on Human Rights.
The court stated clearly that a fundamental distinction had to be drawn between the ‘watchdog’ function of the press in reporting facts capable of contributing to a debate in a democratic society - such as those relating to politicians in the exercise of their functions - and reporting the details of the private life of an individual who did not exercise official functions.
From the foregoing, there are several reasons to say that the Danish Cartoons are irresponsible and lack any public interest cause. Some of these reasons are as follows:
• The cartoons lost sight of the fact that free speech stops where other people’s rights start. Religion is also a human right, and free speech does not extend to denigrating other people’s religion and encouraging discriminatory attitudes.
• The cartoons were not carefully explained and were left open for several interpretations, especially as they are also full of innuendoes.
• There is scarcely any public interest cause for those cartoons. They appear to be vindictive and cruel.
• They targeted a selective group of people and there is no clear evidence that the cartoonist made any effort to understand Islamic teachings and the place of Prophet Muhammad in Islam.
• The cartoons appear to be judgmental.
• The consequential damages it has wrecked on fledging global peace and unity clearly testify to its irrationality and irresponsibility.
The resort to self help by aggrieved Muslims does not seem to be the best way out. Two wrongs do not make a right. It would have been neater to go through the European Court of Human Rights under freedom of religion and discrimination grounds. A pronouncement from this court will be of a monumental precedence and will have a more lasting effect than a resort to arson, murder and destruction, which risks individual criminal responsibility. Provocation, even when established is not a defense for murder, for instance. It can, at best, reduce murder to manslaughter.
The Media, it is important to also observe, seems to be at the verge of self destruction. Apart from the controversy over these cartoons, there is a dangerous trend of irresponsibility that strikes at the heart of this noble profession. Journalists and media houses seem quick to rush to publication without verifying facts. News values seem to have been clouded by quest for narrow pecuniary success.
“Serious” journalism that should engage with public policy discourse seems to be paving the way for “unserious” journalism that celebrates gossip. The tabloids are the usual culprits. People’s privacies are being invaded for no just cause. Organizations and families are being wrecked by this kind of journalism, which often neglects the rule of “audi alteram partem” (hear the other party).
There seems to be something missing in the core curriculum within Journalism schools. Media Law, where taught, is often made an optional course. This is regrettable. There is a close relationship between journalism and law. Law is in fact the foundation of journalism because in absence of legal provision for free speech, there will be no journalistic practice. It is important for the new crop of journalists to reclaim the profession’s diminishing glory; a compulsory curriculum for Media Law, Logic and Clear Thought must be developed. This seems to be the only armor against this kind of journalism that neglects serious public interest issues to dwell in cruelty; gossip and half-truths.