Dunja Mijatović: Resisting the urge to over regulate the media

20 Jan 17 | Media Freedom, News and features

[vc_row][vc_column][vc_column_text]In recent years, there has been a perceptible increase in far-reaching restrictions on the media across the globe. This impulse to restrain media freedom stems from a variety of real and perceived “threats” – from concerns about national security, to demands for media “ethics” and “responsibility”, to accusations of the media’s role in the dissemination of so-called “fake news”, most recently. The urge of states to regulate is also reinforced by the overall devaluation of the critical role played by a free and independent media across liberal democracies around the world.

The trend towards ramping up the regulation of the media has worrying implications in these states and others who are currently considering a similar response: the inability of the media to perform its role as a – if not, the – key public watchdog, the erosion of states’ international legal obligations and political commitments on freedom of expression, and a lessening of freedom of the media as a whole.

Under international law, specifically Article 19 of the International Covenant on Civil and Political Rights, states do not have free reign to control the media. Limitations on media freedom, as an aspect of freedom of expression, are allowed only in certain, narrowly defined circumstances, such as national security or the protection of privacy. However, a great many governments are currently approaching media regulation as though restrictions may be imposed at the complete discretion of states regardless of international law and commitments.

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The trend towards ramping up the regulation of the media has worrying implications

[/vc_column_text][/vc_column_inner][/vc_row_inner][/vc_column][/vc_row][vc_row][vc_column][vc_column_text]There have been moves to exert political control over how the media is regulated in a number of OSCE participating states. Take, for example, the January 2016 decision by Poland in a move reminiscent of Hungary’s media law reforms of 2012, to enact a law handing over the power to appoint and dismiss members of management boards of public service broadcasters, Polski Radio and Telewizja Polska, from the National Broadcasting Council to the government. I warned, before the adoption, that the legislation “endanger[s] the basic conditions of independence, objectivity and impartiality of public service broadcasters”.

Anxieties about the effects of media regulation on media freedom are not limited to transitional or newer democracies, however, as the recent debate around the implementation of section 40 of the Crime and Courts Act 2013 in the UK, a traditional bastion of press freedom, suggests. As I have noted, the commencement of the provision would have punitive effects on the press for reporting on public interest issues in the UK, and have an especially onerous impact up on local and regional newspapers who are already facing significant financial challenges. It would also mean that the UK as a long-standing bastion of press freedom would send out a negative message to other states on the possibilities to regulation.

The picture is not all bad, of course. Some states have made significant positive strides in advancing freedom of the media by engaging with my office on legislative amendments, such as the government of the Netherlands on its draft Law on the Intelligence and Security Services, while others have shown advances in terms of case-law, such as Norway on the protection of sources.

Unfortunately, however, the dominant trend is a regressive one –  towards control of the media rather than the reinforcement of it through, among other things, the promotion of media self-regulation and pluralism.  This tendency of states to try and control the media is not just a matter of concern for my office, other international institutions, the media itself and civil society organisations. It is one that should worry all those who care about democratic values, the rule of law and human rights.

Dunja Mijatović is the Representative on Freedom of the Media for the OSCE, based in Vienna.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_basic_grid post_type=”post” max_items=”4″ element_width=”6″ grid_id=”vc_gid:1484907257319-fb6254e3-0fad-6″ taxonomies=”6380″][/vc_column][/vc_row]

Impress? Ipso? Thankfully, there’s a better idea (The Guardian)

11 Dec 16 | Index in the Press

Karen Bradley, our newish secretary for culture, media and sport, has an infernal December dilemma to solve. No, not the relatively simple business of seeing Rupert gobble all Sky TV. She’s over halfway through her 10-week consultation on the future of section 40 of the Crime and Courts Act: the currently dormant provisions that could land an outraged press with the full, crippling costs of libel actions even when they win. Does she stick or does she twist? Read the full article

Index fears recognition of Impress could stifle investigative journalism and threaten press freedom

23 Aug 16 | Campaigns, Campaigns -- Featured, Media Freedom, Statements

Index on Censorship welcomes the delay in the Royal Charter recognition of Impress by the Press Regulation Panel and hopes it provides an opportunity for further consultation. We are extremely concerned that recognition of Impress has the potential to introduce punitive measures for small publishers and to stifle investigative journalism. We are also concerned that about the transparency of its funding. These are factors that threaten freedom of the press.

We hope the decision today gives an opportunity for a rethink.

Index remains concerned that, aside from the Royal Charter, other elements of legislation introduced in the wake of the Leveson Report represent a threat to media freedom. One of the most worrying of these is Section 40 of the Crime and Courts Act 2013, which sets out that an organisation which does not join a recognised regulator but falls under its remit (through being considered a “relevant publisher”) will potentially become subject to exemplary damages should they end up in court, and could also be forced to pay the costs of their opponents.

Such measures could be especially punitive for small publishers and news organisations with limited financial means.

There are two principles here that threaten a free press. Firstly, that in effect joining a regulator becomes less than voluntary if you have the threat of punitive damages hanging over your head. Secondly, that those who do not join and therefore feel under threat of exemplary damages will skirt away from controversial subjects and investigative journalism, and opt instead for “safe” stories.

Such measures could be especially punitive for small publishers and news organisations with limited financial means. This has a damaging effect on free expression. Supporters of this aspect of the act argue that exemplary damages would only apply to “reckless” action by journalists, but it is possible that a court could find that a breach of Article 8 rights to privacy and reputation was by definition “reckless” even when a journalist was pursuing an investigative news story in the public interest.”

Impress said in January it would accept donations of £3.8 million to cover the first four years of expenditure, which have been reported as coming almost exclusively from The Alexander Mosley Charitable Trust. The organisation’s own website provides only scant information about its current funding.

Although Impress has said it would not “be beholden to anyone” and that a charity would act as “buffer” between any donor from which it receives funds, the idea that a single wealthy individual should control the purse strings for a supposedly independent regulator should strike fear into the hearts of those who believe in a free press.

Index, a small publisher since 1972, has not signed up to a regulator.

21 October 2016: An earlier version of this article incorrectly stated that section 42 (3) of the Crime and Courts Act sets out that an organisation under its remit could be subject to damages if it does not join a recognised regulator.