Journalism under threat conference, Belfast, 22/11/2003
Speech by Ciarán Ó Maoláin
research worker with the Northern Ireland Human Rights Commission
The Human Rights Commission will always be an ally of media freedom. Since it is co-hosting today's conference along with the NUJ Ethics Council, it is appropriate to stress the importance of observing journalistic ethics as a way of sustaining public support for media freedoms. Decency, restraint and even-handedness are not obsolete values. Those countries where journalists enjoy public confidence are countries where the state is considerably less likely to raid newspaper offices, arrest journalists and tell the media what it can and cannot say about prominent people.
Unfortunately what I have just alluded to is not Tsarist Russia but a pretty fair description of this state. Some years have passed since Northern Ireland law banned the sale of certain newspapers and made it a criminal offence to belong to certain political parties, but even in 2003 we have seen armed police raiding newspaper offices and the homes of journalists, who have been arrested. We have also witnessed in England an injunction against the mere reporting of certain allegations about a prominent person.
We have just been hearing, and will hear more, about some of the conflicts that have arisen in Ireland and Britain between journalists and the machinery of criminal justice. My purpose now is to broaden out the discussion beyond domestic law as it presently operates, by describing some of the protective framework that international human rights law seeks to provide. I will focus on the most significant human rights standard that applies in this area in the UK and Ireland, the European Convention on Human Rights. I will conclude with a discussion of how individuals, and organisations such as the NUJ, can make practical use of the human rights systems. ...
When examples are cited of how human rights law has evolved and been applied in ways that advance press freedom, one case that is frequently mentioned is that of Goodwin v UK at the European Court of Human Rights. For that reason it is a particular pleasure to be giving this platform later today to Bill Goodwin, who showed such courage in protecting his sources.
The Goodwin case, of which we will hear more this afternoon, illustrates the point that much human rights law in this area is not made in the black letter of international treaties, but is "found" by the courts as they elaborate the meaning of loosely worded protections and exceptions. A further important point is that the international instruments typically state only the bottom line, the minimum guarantees that the least liberal of the states parties are prepared to concede. It is therefore necessary to advocate, and of course permissible to enact, protections at the national level that go far beyond what the treaty obliges. It is also necessary from time to time to get the courts to revisit what may be outdated conceptions of where rights begin and end.
Most of the rights and freedoms of particular relevance to the practice of journalism in these islands derive from the interpretation of the European Convention on Human Rights. This is a treaty by which both the UK and Ireland have been bound since 1953. It is an instrument of the Council of Europe, a much larger body than the European Union, but the EU has itself increasingly become a source of human rights law.
The largest system of human rights protection is of course the United Nations. Since the main relevant UN instruments are broadly similar to the European law I will not mention those in detail, except to return towards the end of my talk to discuss how the UN system can be used to protect journalism.
It became much easier to access the Convention rights when the UK domesticated much of its substance in 1998 through the Human Rights Act, and a similar process is now underway in the Republic. This means that domestic courts need to make their rulings consistent with the Convention, rather than forcing citizens to take the long and costly road to Strasbourg to vindicate their rights. Moreover in at least the case of UK jurisdictions, where domestic laws fall foul of the Convention, the courts will be able to reinterpret them or even, in the case of secondary legislation where no compatible reading can be construed, disapply them.
So what does the Convention actually say about press freedom? It has surprisingly little in explicit terms; indeed it specifically refers to the print media only to say that the press "may be excluded from all or part of [a] trial in the interest of morals, public order or national security". But the fact that this is stated in an exceptions clause, in this case to Article 6, makes it clear that where such exceptional reasons are not present, access for the press is actually an integral element of the human right to a fair trial.
The main relevant content is to be found in Article 10 of the Convention, and most of what I say today will deal with that Article. It begins 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.
Note that the right is not only that of the media (and everyone else) to impart information without interference, but the right of every person to receive information without interference. This provision of the Convention is engaged by any state action that restricts journalism, and the right that may be violated belongs not just to the journalist but to every one of his or her potential readers or audience. It is thus a very serious matter for the state itself to interfere in the communication of information and ideas, since to prevent publication even by a single newspaper may compromise the rights of many millions of citizens.
Because Article 1 of the Convention binds states parties to securing all the Convention rights for everyone within its jurisdiction, the state also has an inescapable duty to prevent third parties from interfering with freedom of expression. That is, the state can be in violation of its obligations if it does not do enough to prevent, investigate and punish the intimidation of media workers, attacks on media premises, or the murder of journalists, all of which phenomena have unhappily occurred in Northern Ireland. While Martin O'Hagan's murderer remains free, neither our press nor our people are fully enjoying the freedom asserted by Article 10.
Very few human rights, as defined in the major treaties, are absolute. Two exceptions are the right not to be tortured, and the right not to be enslaved. But in most other instances, if we set aside practical limitations in terms of the individual's capacity to avail of a right and society's resources to deliver it, human rights are still limited conceptually and legally in three ways.
Firstly, an individual can only enjoy and exercise a right to the extent that doing so does not deny others the same right. In the media context, for example, a monopoly allows the proprietor complete freedom of expression but is inimical to the interests of a pluralist democracy. This is why a newer instrument, the EU's Charter of Fundamental Rights, declares that "the freedom and pluralism of the media shall be respected".
Secondly, the exercise of one right is conditioned by its impact on other rights, so that, for example, media freedom does not completely override the right to a private life, and that right to privacy is correspondingly tempered by the legitimate reporting of matters of public interest. The privacy right, in Article 8 of the European Convention, would on its own provide enough talking points for an NUJ conference.
But the third type of limitation is internal. When defining something as a fundamental human right it is on the one hand necessary to do so in a concise and intelligible way, but on the other hand, to avoid absolutist language that denies the reality that the enjoyment of rights is a dynamic, negotiated and political field. There must always be room in the way that a right is asserted to allow some scope for legitimate restriction on individual autonomy where this serves a real and pressing social need. The right must have an irreducible core content, but it must be able to accommodate more liberal or more restrictive definitions, to give the instrument relevance and durability across the years and in widely differing social, economic, moral, religious, political, ethnic and cultural contexts. This is what is intended in according to states a "margin of appreciation".
The qualified nature of a human right is reflected in the way that a human rights instrument defines it. Usually, as in Article 10, the assertion of the right is immediately followed by a general or detailed exceptions clause, that sets out when the state may be allowed to do things that would otherwise constitute a breach of the right.
The exceptions that are allowed by Article 10 include licensing requirements for broadcasting, television and cinema. It is not in principle a violation for states to prohibit broadcasting without a licence, but it is much more problematic when the state chooses to use the licensing regime to exert political pressure on broadcasters. This of course was the case with the bans imposed by the Thatcher government on broadcasting direct speech by representatives of Sinn Féin and some other groups. It is sometimes overlooked that the bans were effected via the regulatory regime rather than, as the Republic did more honestly but to similar effect, through primary legislation.
The second part of Article 10 enumerates what may seem a daunting list of exceptions. These it justifies on the basis that
The exercise of these freedoms [of expression, opinion and information]... carries with it duties and responsibilities...
The language of the Convention here may seem dated, but it has proven extraordinarily durable. The exceptions clause goes on to say that, because these duties and responsibilities exist, states may make the freedoms
... 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 the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
That is a daunting list of ten "interests" in which a democratic society may (rather than must) place conditions on the exercise of freedom of expression, impose formalities on it, place restrictions on it or impose penalties on it, all within the framework of the main European human rights instrument. But these are strictly interpreted in the jurisprudence of the Strasbourg court, and must now be so interpreted by our own courts.
Any of these interferences with freedom of expression has to be as prescribed by a clear, accessible and properly enacted law. Moreover that law, and every occasion on which it is invoked, must be compliant with the needs of a "democratic society". So, for example, the exceptions clause may not be misused to stifle debate on constitutional or political issues.
As the Human Rights Commission has found in its work to develop a Bill of Rights for Northern Ireland, it is no easy matter to draft a human rights instrument. The challenge is to come up with language that preserves and builds on existing protections, prevents any significant retrogression, and still offers sufficient elasticity to cope with the contingencies that the state may face. A phrasing that does not allow the state to defend its proper interests will never be ratified, and should never be proposed, but a phrasing that defers too much to the state loses the point of human rights law.
Human rights law is a mutual legitimation of the power of the state and the autonomy of the citizen. The citizen requires the state to refrain from abusing his or her rights, and to protect him or her against abuse by third parties. The trade-off is that the citizen concedes to the state the power to impose temporary or permanent limits on his or her activities, for the greater good.
Look at the way this human rights provision, Article 10, is constructed. It might perceived by a cynic as asserting rights in terms too vague to make them enforceable, and immediately qualifying them in terms so vague as to admit any state interference. Yet this construction is typical of international human rights instruments. So what is the use of human rights law to a front-line hack?
The first point is that international human rights law is normative. It establishes the ground rules with which domestic law must, at least, accord, and which a state that proclaims liberal values must be seen to surpass. Every parliamentary Bill that seeks to regulate anything to do with the media must now be assessed within Government for compliance with the European Convention.
This assessment can also be done independently by institutions such as the Human Rights Commission, which can scan Parliamentary proposals not just for Convention compatibility but against the whole corpus of international human rights law—and for consistency with its spirit as well as strict compliance. The same will apply in this region if and when some of these matters are legislated on by the Northern Ireland Assembly, and a similar pattern will be followed in Scotland shortly, and in a few years when there is a combined human rights and equality body for England and Wales. Rights proofing already takes place in the south of Ireland and the domestication of the Convention will help to ensure that that instrument sets the tenor for all future media legislation and regulatory systems. Institution such as ours welcome input from unions and other parts of civil society in our rights-proofing work.
The second point is that the Convention rights are litigable. Journalists and publishers can now assert their Convention rights in the domestic courts. Organisations like my Commission stand ready to intervene in or support cases where media rights are under threat. There is also much expertise in the voluntary sector, the NGO community, to be called upon when media workers or news organisations find their liberties infringed.
The third point about human rights standards is that, even where the domestic or indeed European courts deny you justice, there are other ways of calling oppressive and abusive states to account. I promised to end my talk by discussing how the international human rights systems can be used to protect journalism and I will now briefly do that.
In the UN system, our states are parties to human rights instruments such as the International Covenant on Civil and Political Rights, which has provisions comparable to Article 10 of the European Convention. The Covenant, and other UN human rights instruments, oblige the state to submit periodic reports on how it is protecting and advancing rights such as freedom of expression. This is an opportunity for the NUJ, or indeed individuals, to draw attention to abusive practices, independently or though human rights commissions. No Government likes to be held to account in the international arena and the mere knowledge that an examination process is falling due creates an anxiety in government about anything that might found a critical observation from the treaty's supervisory body.
The Council of Europe works differently in that compliance with the Convention is not subject to periodic examination. Like the UN it has its own human rights personnel, with whom bodies like the Northern Ireland Human Rights Commission have close relations and some influence. However, it does, unlike the UN, have a parliamentary tier so that it is always possible to generate debates around rights issues with no greater effort than is required to influence the Dáil, the Assembly or the Westminster Parliament. The same applies to the European Parliament, which does not have formal supervisory functions for human rights treaties but which has, along with the European Commission, created a space for itself in which much of the most innovative work on defining rights is being done.
The two main systems for our purposes (the UN and the Council of Europe) also have special human rights mechanisms that do not limit themselves to monitoring individual treaties. These include the Office of the High Commissioner for Human Rights, the Council of Europe's High Commissioner, and shorter-lived mechanisms such as Special Rapporteurs and Working Groups. The number, composition and remits of these entities change from year to year but bodies like the Northern Ireland Human Rights Commission should always be able to put a journalist in touch with the appropriate entity, or indeed to pursue the issue on its own account.
Thank you very much for the opportunity to address this conference, which the Northern Ireland Human Rights Commission has co-sponsored and to which, on the Commission's behalf, I extend a warm welcome to all of you and especially to those who have travelled to Belfast for the occasion.