Scope of protection of freedom of expression

the public interest.’³⁴ The ECtHR thus concluded that ‘limitations on the confidentiality of journalists’ sources call for the most careful scrutiny by the Court’.³⁵

Two distinct types of cases on the protection of journalists’ sources can be identified. The first type concerns cases where journalists were forced to disclose their sources. For instance, in Goodwin v. UK, the ECtHR found an order served on a journalist to disclose the identity of his source was excessive and a violation of Article 10 of the ECHR.³⁶ The second type concerns cases in which journalists had their homes or workplaces searched, material seized, or both. For instance, in Ernst and Others v. Belgium and in Tillack v. Belgium (as well as on several other occasions), the ECtHR decided such searches should be considered even more serious than orders to disclose journalists’ sources, due to the measures’ surprise nature and wide scope, often giving access to all documentation of a journalist.³⁷

the need for free and independent broadcasting, which may require the state to act and provide the necessary funding and conditions for the independence of broadcasting stations.⁴⁰ This resembles the adjudication of the GFCC, according to which the state is obliged to create an independent public communicative sphere.⁴¹

The question of what is covered by the scope of fundamental rights concerning new media services is pressing. Currently, new media services in the form of news websites, blogs, online activities of public service broadcasters and the online services offered by print media outlets challenge the legislature and judiciary in all the countries under study. Questions circle around the following topics: When does online news become a broadcast, or a linear audiovisual media service within the wording of the Audiovisual Media Services (AVMS) Directive,⁴² and thus become subject to the generally much stricter broadcasting regulation? What should public service broadcasters provide online? When does a blog become a journalistic publication and thus attract specific protections but also legal obligations applicable to journalists?

The phenomenon of single-author blogs that can reach large audiences through the information channel of the Internet was not anticipated by legislators and remains an open question.

The print media and broadcasting are embedded within large organisational structures, which are best exemplified in the editorial offices. This structure is seen to guarantee professionalism, as it is not only one person, but a group, that produces media content. The legislature had this structure in mind when it created legal privileges for journalists but also specific obligations, such as those that relate to truthful reporting, accuracy, and impartiality. Blogs, however, established a new form of public communication, as a single person can potentially reach a large audience once reserved only for traditional media outlets. As blogs can transfer solely personal information as well as information that is directed to a large audience and with potential political influence, the question has arisen as to under which conditions journalists’ rights and obligations should also apply to bloggers. In the case of Germany, the legislature has sought to address this question with a new legal form,

‘journalistic editorial online content’, and left it to the courts to define this more precisely. As ‘journalistic editorial online content’ enjoys some of the privileges applicable to journalists, its definition is crucial (see for the definition Held, 2008:

para 38). The ECHR does not explicitly distinguish between print media and broadcasting and the individual freedom of expression, which means it is open to the ECtHR to include new media services within the scope of Article 10 of the ECHR.

The national constitutions that do proclaim such a distinction, such as the Belgian Constitution and the German Basic Law, need to seek legal solutions if they are to guarantee the same protection currently granted to traditional media services to comparable media services in the online world, such as blogs with journalistic content.

Besides these basic observations, some particular aspects merit attention as they illustrate how the jurisprudence of the ECtHR has shaped national properties.

The ECtHR has broadened the scope of protection afforded against prior censorship (i.e. before publication) to audiovisual media. The Belgian Constitution, as

39 See only ECtHR, RTBF v. Belgium (no. 50084/06), 29 March 2011.

40 ECtHR, Manole and others v. Moldova (no. 13936/02), 17 September 2009, paras 98-99.

41 German Federal Constitutional Court, 16 June 1981, no. 1 BvL 89/87, in BVerfGE 57, 295 at p.

321f.

42 Directive 2010/13/EU, Official Journal of the EU, L 95 of 15 April 2010, p. 1.

traditionally interpreted by the Court of Cassation, distinguishes between print media outlets and other media services such as broadcasting (Van Besien, 2011: 17). While the Constitution in Article 25 is interpreted as explicitly prohibiting prior censorship of print media outlets, this is not the case with broadcasters. The ECtHR found this in RTBF v. Belgium to be a violation of Article 10 of the ECHR, meaning in effect that audiovisual content must come within the scope of the prohibition of prior censorship in Article 25 of the Belgian Constitution (Van Besien, 2011: 18).⁴³ Meanwhile the Belgian Court of Cassation, in two recent decisions,⁴⁴ decided that digital communication via the Internet should be considered a ‘press offence’ within the meaning of Article 150 of the Belgian Constitution. It can therefore be expected that the Court of Cassation will henceforth consider Internet publications to fall within the scope of Article 25 of the Belgian Constitution and thus benefit from the prohibition on prior censorship.

The European jurisprudence pertaining to the protection of information sources discloses tensions in the countries under study between journalists’ use of secret sources and the law enforcement authorities. Even though in most of the countries studied, protection of sources is respected, the ECtHR has had to decide upon concrete measures of law enforcement authorities and their proper balance with the protection of informants necessary in democratic states.⁴⁵ While national legislation generally protects journalists’ premises and editorial offices from search, and journalistic material from seizure, this protection is not absolute. Journalists’ right to withhold the identity of their informants constitutes a core element of the protection granted by the applicable fundamental right in the countries under study as well as Article 10 of the ECHR. However, the national legal orders provide different restrictions in this regard. Journalists are commonly required to disclose their sources’

information when this is the only way to prevent a serious crime.

Furthermore, the ECtHR protects both value judgment and fact in publications under Article 10 of the ECHR. The wording of Article 10 of the ECHR allows for the protection of both these aspects, which enables the Court to cover almost all forms of written or oral communication. The distinction between fact and value judgment is important, as national judges as well as the ECtHR have developed distinct lines of reasoning which differentiate between these two forms of communication.

Interestingly, the Greek judiciary has until now mostly ignored the European court’s interpretation, which has resulted in a curtailment of the protection of journalists’

work (Psychogiopoulou, Anagnostou and Kandyla, 2011: 41).⁴⁶

The ECtHR does not clearly extend the scope of protection of Article 10 ECHR to a right of access to public documents, important for journalistic work.

However, since 2009, the ECtHR has broadened its interpretation of the notion

‘freedom to receive information’ to a certain degree. In two important judgments, the ECtHR found that the refusal by public authorities to give the media or civil society organisations access to documents that were needed for public debate violated in these

43 ECtHR, RTBF v. Belgium (no. 50084/06), 29 March 2011, para. 116.

44 Court of Cassation, Nr. P.11.1374.N, 6 March 2012 and Court of Cassation, Nr. P.11.0855.N, 6 March 2012.

45 ECtHR, Goodwin v. UK (no. 17488/90), 27 March 1996; ECtHR, Sanoma Uitgevers B.V v. The Netherlands (no. 38224/03), 14 September 2010; ECtHR, Nordisk Film & TV A/S v. Denmark (no.

40485/02), 8 December 2005.

46 ECtHR, Avgi Publishing and Press Agency S.A and Karis v. Greece (no. 15909/06), 5 June 2008, para. 33.

particular cases Article 10 ECHR.⁴⁷ The Strasbourg Court did not declare that Article 10 ECHR protects in general the access to public documents. It only pointed out that governments have an obligation not to impede the flow of information on matters of public concern and that, depending on the circumstances of each case, certain refusals to provide access to public documents may constitute a violation of Article 10 ECHR.

It is to be noted that various national laws also cover the right to access to public documents,⁴⁸ and that the EU Charter on Fundamental Rights in its Article 42 recognises a right of access to documents of the European Union institutions.⁴⁹

The CJEU has had so far only limited opportunities to develop its own reasoning on Article 11 of the EU Charter of Fundamental Rights in relation to the countries under study. Although it clearly states in cases from other EU member states that maintenance of pluralism in the media is crucial (with reference to Article 10 of the ECHR), the case law is different to the jurisprudence of the ECtHR.⁵⁰ Accounting for this are primarily two reasons: firstly, the EU Charter of Fundamental Rights only came into force in December 2009⁵¹ and secondly, the EU has a clear economic focus on media matters. Although fundamental rights protection in the EU, stemming from the ECHR and the constitutional traditions common to the Member States, was (and still is) a general principle of EU law, this did not change the reasoning of the CJEU.

Simply put, the CJEU draws its reasoning on the applicable provisions in the EU treaties for media services (such as Article 56 of the TFEU on the freedom to provide services) as well as the adopted directives (such as the AVMS Directive). In the CJEU’s judgment in United Pan-Europe Communications, for instance, the question was not whether there was a justified interference with Article 10 of the ECHR, but whether the freedom to provide services in the TFEU itself could be restricted based on the ECHR. The CJEU reiterated that the maintenance of pluralism of television programmes, as part of a cultural policy and as such protected by Article 10 of the ECHR, can restrict the freedom to provide services.⁵²