Protecting the safety of journalists Training workshop on media and freedom of expression law

Are journalists safe? What is the situation in your country? Are journalists free to work without danger, threat or physical interference? If no, where does this danger come from – the state or other actors?

Sometimes the threat to journalists is not posed by the law, but by the lack of it. Physical attacks on journalists are an enormous hazard. But governments still have legal obligations: The state has a responsibility to provide protection to media professionals; The state has a responsibility to initiate an independent investigation into any attack on media professionals and to prosecute those responsible, as appropriate (this is, of course, part of a broader obligation to protect everyone and to investigate any serious violation).

1.Attacks such as the murder, kidnapping, intimidation of and threats to media practitioners and others exercising their right to freedom of expression, as well as the material destruction of communications facilities, undermines independent journalism, freedom of expression and the free flow of information to the public. 2.States are under an obligation to take effective measures to prevent such attacks (Declaration of Principles on Freedom of Expression in Africa)

The special rapporteurs on freedom of expression (from the UN, OSCE, the African Commission on Human and Peoples’ Rights and the Organization of American States) stated that governments must: Put in place special measures of protection for individuals who are likely to be targeted for what they say where this is a recurring problem; Ensure that crimes against freedom of expression are subject to independent, speedy and effective investigations and prosecutions; and Ensure that victims of crimes against freedom of expression have access to appropriate remedies.

There is a general obligation on states to investigate allegations of killing, disappearance or torture. The ECtHR reasoned that there is no substance to a prohibition of arbitrary killing, if there is no obligation to investigate (McCann v. United Kingdom). This applies whether or not the alleged perpetrator is a state agent.

The obligation to investigate applies in all cases – but there is also case law on “crimes against freedom of expression” such as attacks on journalists. “The Court recalls the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection…” (ECtHR, Ozgur Gundem v. Turkey)

“A State’s refusal to conduct a full investigation of the murder of a journalist is particularly serious because of its impact on society… the murder of a journalist has a ‘chilling effect’ most notably on other journalists, but also on ordinary citizens as it instils the fear of denouncing any and all kinds of offences, abuses or illegal acts.” (IACtHR, Miranda v. Mexico)

Hypothetical case for discussion A journalist who has reported on links between the police and organized crime is abducted. Later his body is found with all the hallmarks of a gangland killing. The police say that they are investigating the murder as they do all crimes. There is no particular human rights obligation on them in this case, they argue. Is this an adequate response? If not, how would you respond to the police position?