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Freedom of Expression and Investigative Journalism ¹
by Toby Mendel ²

This paper was given in a session entitled "Restrictions on Freedom of Expression in a Democratic Society" and addresses, primarily, the type of legal framework best suited to promoting investigative journalism, in the context of the role of the media in promoting probity and accountability in public affairs.

ARTICLE 19 is an international human rights organisation, registered as a charity in the UK, which takes its name from the Universal Declaration of Human Rights (UDHR), which was adopted by the General Assembly of the UN in 1948 as its flagship statement of human rights. Article 19 of the UDHR, together with Article 19 of the International Covenant on Civil and Political Rights (an international treaty which is legally binding on governments) guarantee the right to freedom of expression. This includes the right to seek, receive and impart information and ideas, through any media and regardless of frontiers. The primary goal of ARTICLE 19, therefore, is to promote freedom of expression.

Article 19 does this in a wide variety of ways, including:

• Working for law reform and for greater respect for human rights.
• Producing reports both on problems within specific countries and on general issues relating to freedom of expression.
• Educating and training, both formally and through our publications and outreach programme.
• Within the Law Programme, promoting freedom of expression through the UN and other inter-governmental bodies such as the Council of Europe.
• Promulgating standards on specific freedom of expression issues, such as media coverage of elections and restrictions on grounds of national security.
• Involvement in cases raising freedom of expression issues before both national and international courts and tribunals.

Introduction [precis] ARTICLE 19 argues that media reform should be integral to anti-corruption programmes, given the media's important role in exposing corruption as part of their 'watchdog' function, which includes reporting on matters of public interest and keeping a check on the activities of governments. This article looks at the institutional obstacles to the types of investigative journalism which can expose and challenge corruption.

Why investigative journalism is important Democracy is founded on a number of principles, one of which is the accountability of elected representatives and civil servants to the people. Ideally, a host of mechanisms should help ensure accountability but even the very best systems may be abused. Experience shows us that when wrongdoing does take place, investigative journalists are among those best placed to expose it and ensure that justice is done. In fact, because of the great public interest in the conduct of government including the exposure of corruption and other misuse of public office, the European Court of Human Rights (ECHR) has frequently noted the important 'watchdog' role of the media.

Facilitating investigative journalism The concept of an 'appropriate' legal framework for promoting investigative journalism is primarily one that conforms to international standards regarding freedom of expression in the relevant areas. These standards have been most comprehensively elaborated within the European system of human rights, through treaties and other standard-setting documents and by the European Commission and Court of Human Rights. But obviously other international bodies, including the UN and the Inter-American system, have undertaken some important standard-setting. The basic principle underlying these standards is that while freedom of expression is not absolute, any restrictions must be necessary in a democratic society and must satisfy a strict proportionality test.

Three main conditions can be identified as creating an ideal environment for investigative journalism to flourish. First, there should be an independent, pluralistic media which is both interested in and capable of undertaking investigative journalism. Second, journalists must be able to identify problems and investigate them: this implies, most importantly, that they can have access to relevant information from a variety of sources. Third, the media must be free to publish or broadcast the stories their journalists have uncovered in the public interest, without fear of censorship, recrimination or penal sanction.

The promotion of appropriate conditions for investigative journalism requires action at a wide range of levels. A suitable legal framework is one essential part.

There are three main components in a legal framework geared to facilitating successful investigative journalism. These correspond to the three conditions noted above: a good regulatory structure for the media, an open freedom of information regime and only limited and narrowly defined restrictions on publication. The first is necessary to promote the development of an independent, pluralistic media which values investigative journalism and to ensure unhindered access to journalism as a profession. Without this, even the motivation to investigate corruption and other accountability problems may be lacking. A proper freedom of information regime enables journalists to have access to the information they need to root out and expose corruption and to help defend themselves when charged with publishing false information. Finally, excessive restrictions on publication, such as prior censorship or oppressive defamation laws, can mean that even when corruption is discovered, stories are not published.

The Regulatory Framework for the Media Unless the media - both print and electronic - are independent, and unless there is a reasonable degree of media diversity, investigative journalism is very difficult. Public actors must respect the editorial independence of public broadcasters and the government must create an enabling environment in which the independent media can flourish. The Committee of Ministers of the Council of Europe has set out a number of guidelines on guaranteeing the independence of public broadcasters. These include:

• strong guarantees of editorial independence and institutional autonomy, for example with respect to programme schedules the presentation of news, financial management and staffing;
• a prohibition on censorship; and
• a requirement that members of governing bodies be appointed in an open and pluralistic manner and be representative of society as a whole.

These guidelines clearly establish the importance of independent, representative public broadcasters.

A 1993 case before the European Court of Human Rights addressed the issue of whether a public monopoly on broadcasting was an acceptable limitation on freedom of expression under the European Convention on Human Rights. Significantly, the Court held that the public's right to know could only be satisfied where the media was "grounded in the principle of pluralism, of which the State is the ultimate guarantor." A public monopoly imposed "the greatest restrictions on the freedom of expression, namely through the total impossibility of [private] broadcasting" and was therefore unacceptable. This case thus established the important principle that the State is under an obligation to take positive steps to promote media diversity. This implies that the government should promote rather than restrict access to the broadcast media sector. The same principle implies that licensing of the print media is not acceptable and that the government should promote economic conditions which favour press development.

Equally important in this regard is the right of anyone to practise journalism without restrictions. The key international standard in this area was elaborated in an advisory opinion of the Inter-American Court of Human Rights, upon a request of the government of Costa Rica. In that opinion, the issue was whether a law licensing only journalists who were members of a professional association was an acceptable limitation on freedom of expression. The Court held that licensing of journalists was not compatible with the Inter-American Convention. Unlike law and medicine, the practice of journalism was "an activity specifically guaranteed by the Convention" which could not be limited under the guise of promoting professionalism.

Freedom of Information Freedom of information is clearly a right of the very greatest importance. In its very first session in 1946 the United Nations General Assembly adopted Resolution 59(I) which stated:

Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.

The importance of freedom of information to those engaged in investigative journalism is almost too obvious to warrant repetition. Information is the basic stock-in-trade of a journalist; a freedom of information regime makes the exposure of corruption and other types of public wrong-doing considerably easier.

There are a number of aspects of freedom of information, of which the most relevant here are access to government-held information, secrecy laws, protection for whistleblowers and confidentiality of journalists' sources.

If journalists are to be able to expose corruption, they must have access to information held by government. The UN Special Rapporteur on Freedom of Opinion and Expression has noted that "the right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government." In many countries around the world, one finds free-standing rights of access to government information - for example, in press laws - that are ineffective because they are simply not applied in practice. Proper access requires not only a legal guarantee but also an accessible and effective administrative mechanism to ensure that requests for information are dealt with quickly and fairly.

Obviously, some limitations on access to information are legitimate, for example for reasons of national security and privacy. But these must be narrowly defined and also necessary to protect the interest. In addition, any refusals to disclose information must be subject to review by independent bodies and ultimately by the courts.

Secrecy laws represent the other side of the coin. Whereas access to information legislation grants a right to use government-held information, secrecy laws make it a crime to disclose certain information, for example for reasons of national security. Again, secrecy laws may be legitimate, but only if they are very narrowly drawn and seek to protect a legitimate interest. In 1995 the Johannesburg Principles on National Security, Freedom of Expression and Access to Information were adopted by an international group of experts meeting in South Africa. Principle 15 is particularly relevant here, prohibiting punishment "on national security grounds for disclosure of information if
1] the disclosure does not actually harm and is not likely to harm a legitimate national security interest, or
2] the public interest in knowing the information outweighs the harm from disclosure."

Whistleblowers Protection for whistleblowers is an important aspect of secrecy laws. Whistleblowing refers to the disclosure by civil servants and others of information in the public interest, even though this information is otherwise legitimately classified. Ideally, whistleblowers should have special exemption from prosecution. Whistleblowing is in practice very common; there is often a constant flow of classified information from civil servants to journalists. In many ways this serves as a safety valve, ensuring that information on matters of public concern does get to the public. Corruption is clearly an issue where whistleblowing will often be in the public interest. For example, the fact that an army general is making money by selling arms to friendly regimes should be made public even if information about those particular weapons is otherwise classified. Principle 16 of the Johannesburg Principles deals with this issue, providing that no one should be punished "for disclosing information S if the public interest in knowing the information outweighs the harm from disclosure."

Protection of sources Investigative journalists often rely heavily on confidential sources - individuals who are prepared to leak material to them - for much of their information. Often, these sources wish to remain confidential, because they risk censure if found out or because they have breached laws or employment contracts by leaking the information. Journalists often refuse to divulge the identity of these sources, partly because of professional ethics but mainly because if they do so, other sources will be reluctant to come forward and the flow of information will dry up. In a celebrated case, in which ARTICLE 19 intervened, the ECHR held that "protection of journalistic sources is one of the basic conditions for press freedom" and that mandatory disclosure was unacceptable unless "justified by an overriding requirement in the public interest." The Court went on to hold that the desire of a private company to unmask a disloyal employee who had leaked confidential information to a journalist was insufficient to warrant mandatory source disclosure. Source confidentiality is protected in many countries, in recognition of its importance to press freedom.

Restrictions on Publication Censorship is an extreme way of restricting freedom of expression. In recognition of this, Article 13(2) of the Inter-American Convention on Human Rights expressly prohibits prior restraint and so in the Americas, censorship is formally illegal. The problems of censorship for investigative journalists are obvious.

Protection of reputation In ARTICLE 19's experience, defamation laws in many parts of the world severely curtail the publication of information in the public interest. Harsh defamation laws lead journalists to err on the side of caution, not publishing rather than risking the cost and inconvenience of a court case. This is particularly common where allegations of corruption or wrongdoing, including by public officials, are involved. Repressive defamation laws can be costly even when journalists win cases. The Guardian newspaper in Britain, for example, had three high-profile defamation cases in 1997, all of which it won. Despite this, it lost money and staff time in all three.

Although the term 'defamation' is used, it is actually a convenient shorthand for a whole category of laws which restrict freedom of expression, purportedly to protect reputations. These restrictions go by many names, including slander, libel, insult and desacato laws. The precise label is unimportant - the issue here is how to strike the right balance between protecting reputations and dignity, on the one hand, and freedom of expression on the other.

It is clear that freedom of expression may be restricted to protect reputations. This is explicitly provided for in all the main international human rights instruments, including the Inter-American Convention. It is, however, equally clear that some defamation laws unacceptably limit freedom of expression.

A number of important principles have emerged from these cases and other international standard-setting. One of the most important, certainly, is that politicians and public officials must tolerate a greater degree of criticism than ordinary citizens. In a report on desacato laws, the Inter-American Commission on Human Rights noted that "in democratic societies political and public figures must be more, not less, open to public scrutiny and criticism." As a result, the Commission was of the opinion that desacato laws breach the guarantee of freedom of expression. The Verbitsky case involved a conviction under desacato laws for defaming the Argentine Supreme Court Minister. Mr. Verbitsky applied to the Inter-American Commission at which point the Argentine authorities settled the case, reversing the conviction and repealing the desacato law. The ECHR has frequently held that politicians must tolerate a greater degree of criticism than ordinary citizens and that the limits are even wider as regards governments.

Distinctions between facts and opinions The ECHR has made a clear distinction between statements of fact and opinions or value judgements. An important principle is that defendants cannot be required to prove the truth of opinions. In a case from Austria, a journalist had accused the Chancellor of, among other things, the "basest opportunism" and "immoral" and "undignified" behaviour. Under Austrian defamation law, the journalist had to prove the truth of his or her allegations and the journalist in this case was convicted, in part for failing to do this.

The ECHR held that this was unacceptable, noting that it was impossible to prove the truth of opinions. A case in which a journalist had called a leading politician an 'idiot' provides some indication of what the appropriate standard might be as regards opinions. The ECHR held that this was acceptable, taking into account the fact that the politician had also been provocative and that the article was part of a larger political debate and not simply a gratuitous attack on the individual concerned.

Burden of proof and proof of truth It might seem obvious that in relation to statements of fact, proof of the truth should be a complete defence. However, in many countries, such as Mexico and Spain, defendants are denied this opportunity. The ECHR has clearly established that defendants must be allowed to prove truth and that convictions for true statements are not acceptable.

The rule that true statements cannot be defamatory does not necessarily imply that false statements are. In fact, there are serious problems with requiring defendants to prove the truth of their statements. The Privy Council, in a case from Antigua and Barbuda involving a law prohibiting the publication of "false news", observed:

[I]t would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based.

A requirement of proof of truth exerts a significant chilling effect on the media for two reasons. First, it is not possible for journalists to satisfy the public's right to know and yet never err. The imperative of getting the news out to the public means that even the most professional journalists will make mistakes. Second, journalists often cannot provide proof of truth, even where their statements are correct. The Inter-American Commission on Human Rights recognised this in its desacato report, stating, "Even those laws which allow truth as a defense inevitably inhibit the free flow of ideas and opinions by shifting the burden of proof onto the speaker." A recent case in England, involving allegations of corruption against a former Minister of Defence, clearly demonstrated this problem. For a long time the newspaper was unable to prove the truth of their allegations, in part because the Minister's wife and child had lied to protect him. Eventually, the newspaper unearthed new evidence and the case against the newspaper was dropped.

In many jurisdictions, journalists are not required to show that their statements are completely accurate, particularly where the allegations involve public officials. Instead, they are only required to conform to certain standards of professionalism. In the celebrated case of New York Times v. Sullivan, the US Supreme Court held that public officials may only recover damages for a defamatory falsehood if they prove that the statement was made with actual knowledge that it was false or with reckless disregard for the truth. Two points are notable here: first, the onus of proof has been shifted from the defendant journalist to the plaintiff. Second, the defendant is only required to have acted without malice or recklessness. Variations of this standard have been adopted in a number of countries around the world, including Australia, Germany, India and Zambia.

No international human rights court has so far adopted what has come to be known as the Sullivan standard. However, in a recent case before the European Commission on Human Rights, a Romanian journalist had been convicted for allegations of corruption on the part of elected officials. Even though the articles contained a number of errors, they were not completely false and so the conviction violated freedom of expression. The Commission specifically noted that it was in the public interest that investigations into corruption be pursued. Another case involved a conviction for an article alleging police brutality, based on popular rumours and containing a number of mistakes. The Court noted that the articles addressed a matter of some public interest, that the goal was to promote reform and that it would have been impossible to verify the rumours. As a result, the conviction was held to breach the guarantee of freedom of expression.

These cases suggest that an absolute requirement of proof of truth would fall foul of the European Convention. Malicious falsehoods are clearly not acceptable. On the other hand, where the goal of publication is to promote reform or expose wrongdoing, it would appear that mistakes should be tolerated. No doubt the Inter-American Commission and Court will develop detailed standards on this in due course. Presumably they will also allow for errors as long as they have not been made in bad faith.

Conclusion Investigative journalism is enhanced when a number of conditions are met. In most countries, legal impediments to investigative journalism are only part of the problem - others not covered here include lack of training for investigative journalists and a lack of political will to investigate attacks on journalists. However, legal impediments are an important part of the problem and are often symptomatic of a wider malaise. This paper has focused on what ARTICLE 19 regards as the most important components of an effective legal framework for promoting investigative journalism. On its own, this legal framework will not ensure that corruption and public wrongdoing are exposed. Without it, however, the challenges and dangers faced by investigative journalists will be considerably greater.

1. Paper for the Conference 'The Role of Social Communication Media in Probity and Transparency of Public Affairs', 20-24 July 1998, Santiago, Chile.
2. Toby Mendel is a head of Law Programme at Article 19.