Investigativer Journalismus in Europa / ���Investigative Journalism in EuropeProf. Dr. Mark D. Cole ���(Faculty of Law, Economics and Finance, University of Luxembourg)

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Investigativer Journalismus in Europa – Ergebnisse einer rechtsvergleichende Studie

unter besonderer Berücksichtigung Luxemburgs

Professor of Media and Telecommunication Law at the University of Luxembourg

Prof. Dr. Mark D. Cole

Director of Academic Affairs at the Institute of European Media Law in Saarbrücken

Investigative Journalism in Europe – Results of a comparative legal study with a special focus on Luxembourg

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Institut für Europäisches Medienrecht (EMR)

§  Exists since 1990 with main seat in Saarbrücken

§  Research and Consultancy institution covering all areas of media law and policy, European & comparative

§  Service provider as neutral platform for information, exchange and advice in the media sector

§  Partner of several national and European Institutions (e.g. European Audiovisual Observatory, National Regulatory Authorities in Germany, ECPMF)

§  Network of around 180 „country correspondents“ in 40 European States; regular newsletters

§  EU-studies such as AVMS-CommComm; AVMS-RADAR; Citizens‘ Right to Information; ECPMF on inv. journ.

Institute of European Media Law Institut du droit européen de medias www.emr-sb.de emr@emr-sb.de

Comparative Study on Investigative Journalism

§  Conducted by the Institute of European Media Law (EMR) as partner of the European Centre for Press and Media Freedom (ECPMF) (www.ecpmf.eu / funded inter alia by EU)

§  Comparative analysis of the national legal frameworks in European States (and European level) concerning Press and Media freedom

§  Identifies areas of concern in the legal protection of press and media freedom and gives recommendations for a better protection

§  25 States analysed by “country reporters” of the EMR-network; study on Luxembourg conducted by uni.lu-team (Prof. Dr. Mark D. Cole and Annelies Vandendriessche, LL.M./PhD student)

§  Full study available at www.ecpmf.eu https://ecpmf.eu/news/legal/investigative-journalism-new-comparative-study-on-legal-regulations-across-europe

25 Countries Covered

§  Austria

§  Belgium

§  Bulgaria

§  Cyprus

§  Czech Republic

§  Germany

§  Denmark

§  Estonia

§  Spain

§  Finland

§  France

§  Greece

§  Croatia

§  Hungary

§  Ireland

§  Italy

§  Lithuania

§  Luxembourg

§  Latvia

§  Macedonia

§  Malta

§  Netherlands

§  Poland

§  Portugal

§  Romania

§  Sweden

§  Slovenia

§  Slovakia

§  Turkey

§  United Kingdom

Importance of investigative journalism

§  Based on protection on European level (esp. Art. 10 European Convention on Human Rights (ECHR) investigative journalism is highly valued everywhere (role of media as “public watchdog”) §  crucial role in the formation of opinion, essential in the democratic process

§  No unlimited protection, there are restrictions §  Law in the States protects the interests of journalists

but also those of others §  when interests clash relevant legal questions arise concerning the

position of the journalist/the media §  Duty of care §  Liability within the editorial chain §  Accessibility of sources of information for investigative journalists §  Limits to actions of law enforcement authorities

The Legal Framework for the protection of journalistic freedom and work – the relevant three levels

(1)  Constitutional Rights

(2)  Statutory Protection / Regular Laws

(3)  Self-regulation

Legal Framework (1) Constitutional Rights of journalists/for journalism

Freedom of expression protected in all countries §  Some include the right to freedom of the press and media explicitly and/or

an explicit prohibition of censorship, e.g. Article 24 of LUX Constitution: “La liberté de manifester ses opinions par la parole en toutes matières, et la liberté de la presse sont garanties, sauf la répression des délits commis à l’occasion de l’exercice de ces libertés. - La censure ne pourra jamais être établie.”

Freedom of information (seeking, obtaining, disseminating information) §  some Constitutions mention this explicitly in addition

(e.g. GER, GRE, IT, POR, SWE)

Right of access to public documents (in ESP, FIN, ROM, SWE, SLOV)

Protection against the seizure of printed material (in GRE, BUL, CYP, IT)

Right to protection of sources (in ESP)

But again: in none of the countries these rights are absolute...

Legal Framework (2) Statutory Protection

Specific Media or Press law in most countries §  Luxembourg: Loi du 8 juin 2004 sur la liberté d’expression dans les médias

Many provisions contained in more general laws in all countries §  Criminal Law, Criminal Procedure Law, Civil Law, Copyright Law,

Law on Access to Information §  Most important statutory limitations to journalistic work (all exist in LUX) §  Laws on State Secrets or Trade and Business secrets §  Data Protection and Privacy legislation,

Right to reputation, honour and dignity §  Right to reply

Right to protection of sources only protected in some countries (incl LUX)

Right to protection of whistleblowers (e.g. IRE; specific in LUX (cf. below))

Laws on search of editorial offices and seizure of journalistic material (incl LUX)

Legal Framework (3) Self-regulatory mechanisms

Journalists are organised into unions and associations and have adopted self-regulatory Codes of Ethics in many countries

Includes typically the establishment of an Ethics Commissions / Press Committees to monitor the implementation of the Code §  LUX: Code luxembourgeois de déontologie (2006), devised and published

by the Conseil the Presse based on Article 23 of the Loi du 8 juin 2004 sur la liberté d’expression dans les médias as well as the installment of a Commission de Plaintes

Overall: Ethics Commissions competent for processing complaints, but usually have no other remedy than public criticism §  In LUX also possibility to retract the press card (but ≠ ‘sanction’)

Self-regulation can offer more flexibility to cope with new challenges than statutes and less “state-intrusive”

Accessibility to Sources of Information and Question of Illegally Obtained Information

Sources for investigative journalists are often not openly accessible

What about information of public interest that cannot be obtained legally? §  Any violation of the law can be prosecuted in most countries irrespective of

who committed the violation for what reason §  Also no general exemption for the media in LUX §  ↔ HUN exception: no liability for illegal acts of journalists if commited

while seeking to obtain information in the general interest, but nonetheless liability for damages caused

§  However, even without explicit “sector exemption” for journalists, courts generally consider the implications for freedom of the press and media on a case-by-case basis when judging on the behaviour of journalists

Use of Secret Information Searches

Most common illegal ways of obtaining information:

§  Secret filming/secret recordings §  In 19 countries publishing secret filmings is legal if in the public interest,

secret recordings in 12 countries, in 5 countries only if otherwise unobtainable footage §  In LUX journalists must in principle reveal their identity, but secret

methods not prohibited when required by public interest

§  Leaked state or trade/business secrets §  Publication of state secrets is a criminal offence in most countries (incl LUX) §  Exceptions are rare, if any: in the general interest or if it reveals a

violation of rights or serious power abuse (MAC, SLOV, SWE) §  not illegal in LATV

§  Similarly, in 18 countries publishing trade/business secrets is illegal §  Exceptions in 7 countries: if publication in the public interest,

to reveal serious power or rights abuses, or to prevent or enable punishment of a crime

The Journalistic Duty of Care

Duties of care exist in all countries to prevent the violation of third party rights, these include the following duties §  to report thruthfully, objectively, fairly and in a balanced manner §  to respect the dignity and honour of persons §  to respect the presumption of innocence §  A counterstatement can be published in some countries (incl LUX)

A public interest defence, or the defence of truth is the most common when these rights are infringed (also in LUX)

Injunctions can be used to prevent publication in GER, DEN, UK §  A super injunction, preventing reports on the fact that an injunction was

issued also exists in the UK

Limits to Actions of Law Enforcement

Criminal investigation of journalists can have a chilling effect on freedom of the press, therefore sensitive area §  But: search and seizure of journalistic material is possible in all countries §  A court order for such measures is required in 19 countries §  In 3 countries an article can only be subject to criminal investigation after

publication §  Surveillance of journalistic communication §  Permitted in all countries, only 5 have specific provisions protecting

journalists from surveillance (surveillance in LUX may not circumvent the right to protection of sources)

The right to protection of sources limits possibility for authorities to conduct searches and seizures of journalistic material in most countries, incl. LUX §  A broad exception exists in 18 countries, including the possibility

of court orders to force a journalist to reveal his source §  In LUX search/seizure may not circumvent protection of sources

Liability within the Editorial Chain

Liability within the editorial chain can impact a journalist’s willingness to publish certain information and can therefore affect press freedom §  Laws on liability of journalists vary greatly from country to country §  Only 9 countries have a successive order of liability such as LUX §  In over half of the countries all the chain is included,

i.e. the journalist, editor or publisher can be held liable

Conclusions and General Recommendations of the Study

§  A wide range of rules protect and restrict freedom of expression leading to different levels of protection across Europe

§  In all countries there is still room for improvement in order to achieve a better protection of the freedom of the press and media

Recommendations

§  Journalists’ acts committed while attempting to obtain information should be decriminalised

§  All rules prohibiting the publication of information infringing the rights of third parties should contain a public interest exception allowing for the balance of interests §  The concept of ‘public interest’ should be expressly defined,

e.g. through a non-exhaustive list describing the reasons for which the exception can apply

General Recommendations continued…

§  Protection of sources should be strengthened §  A right to refuse to testify during court proceedings for journalists §  A prohibition of search of editorial offices and seizure of journalistic material

by law enforcement authorities §  Exceptions must be provided by law and subject to prior review by a court

§  Expand protection of freedom of the press to anyone conducting journalistic work by changing notion of journalist (e.g. bloggers or other forms of online journalism) §  however, this and other recommendations also controversial e.g. in view of

different standards of training

And how about Luxembourg? “Access to Information” as Potential Step Towards a Better Protection

Law on access to information §  In LUX no general law of access to information, but proposal for a new

statute currently under examination by the Chambre des Députés §  A general law of access to information for all citizens §  Integration of a law of access to information for the press in the Loi du 8 juin

sur la liberté d’expression dans les médias §  Whatever form chosen, it should result in allowing journalists greater

access to information, to inform the public in an efficient and independent manner

And a final (possibly inevitable) note on Luxembourg… The Luxleaks Trial – Legal unclarities

How about use of information obtained by journalists through breach of professional secrecy?

§  The Parquet Général in the Luxleaks case underlined that it was not questioning the journalist’s right to freedom of expression §  the journalist was not charged for having published the content of the

leaked documents, but was charged for having alledgedly played an active role in the illegal removal of the documents protected by professional secrecy

In that context: status of whistleblowers in LUX?

§  Luxembourg is 1 of 5 countries in Europe with a law protecting whistleblowers (contained in the Luxembourgish Code du Travail) §  But only when denunciations of illegal activity are made by the employee to

his hierarchic superior or to the authorities, not to the media

Images Sources

Image 1: https://inforrm.wordpress.com/2013/05/17/case-law-strasbourg-saint-paul-luxembourg-sa-v-luxembourg-newspaper-protected-under-articles-8-and-10-hugh-tomlinson-qc/

Image 2: http://www.imdb.com/title/tt0074119/mediaviewer/rm2619022080

Image 3: http://www.buecher.de/shop/arbeit/ganz-unten-erweiterte-neuauflage/wallraff-guenter/products_products/detail/prod_id/03406835/

Image 4: http://paperjam.lu/news/les-deux-visages-de-linteret-general

Image 5: http://www.timetoast.com/timelines/watergate-scandal-1050d4e4-d621-4e0d-b68c-6feb66e38dcd

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Prof. Dr. Mark D. Cole Faculty of Law, Economics and Finance www.medialaw.lu mark.cole@uni.lu