Serving professional journalism since 1912

Magazine of the Chartered Institute of Journalists

Brexit for Journalists

Some see the decision to leave the EU as a disaster – a threat to the nation’s prosperity and a declaration of repugnance at European values.

Others see the vote as one for freedom from Brussels tyranny, an opportunity for the country to achieve international success yet still be a European power.

Then there are those – like me – who don’t think it is any big deal. That in five years’ time things will be much the same as at present.  That people will look back on the summer of 2016 and wonder what all the passion was about.

There are three areas where changes could happen – legislative, judicial or social.  I shall look briefly at how journalists and journalism might be affected. On legislation, remember that we as citizens are not directly affected by Directives, rulings or resolutions coming from Brussels. Everything must be transposed into national law and then enacted in London, Paris, Berlin and other capitals.

As journalists we expect to be able to do our jobs safely and our sources to be protected. These principles are enshrined not in EU regulations but Article 10 of the European Convention on Human Rights (the Convention) that originates with the Council of Europe, a much larger association of 47 countries. This is the Article that was breached by Murdoch and his minions when the complete records of the News of the World were turned over to the Police. Despite best efforts to try and overturn the injustices arising from that action, nothing has yet happened, EU or no EU.

The Council of Europe (not the EU) issued its Recommendation on the protection of journalism and journalists in April 2016. Paragraph 2 of its guidelines states: “Member States should put in place a comprehensive legislative framework that enables journalists and other media actors to contribute to public debate effectively and without fear. Such a framework should reflect the principles set out in this appendix and thereby guarantee public access to information, privacy and data protection, confidentiality and security of communications and protection of journalistic sources and whistle-blowers.”

The EU’s approach is to build on the Convention. It also declares: “The European Commission commits to respect freedom and pluralism of media.” It sets out to do this in a highly bureaucratic way with much of the resource directed to the broadcast sector rather than print. It focuses on outputs rather than journalism – protection of minors, rules on amount and nature of TV advertising, quotas on European content, restrictions on state aid media ownership, etc. These are issues that the UK can deal with according to its needs and requirements. The need for a European dimension is unclear.

In 2013, the Council of the European Union and the representatives of the Governments of the Member States, meeting within the Council, adopted conclusions on media freedom and pluralism in the digital environment. The Council invited the Commission to address four issues. The first was to “continue to support projects that aim at enhancing the protection of journalists and media practitioners.”

Flinty-eyed journos

About the same time the Metropolitan Police was full cry in Operation Elveden. This saw 29 journalists taken through the courts for doing their job. Not much evidence there of any protection for the poor guys by European legislation.

Among the bodies that are active in media is The Centre for Media Pluralism & Media Freedom, initiated within the European University Institute in Italy. This is staffed by academics and post-grads doing the stuff that academics and post-grads do which we, as flinty-eyed journos, know too well will not be associated with the real world.

In Annex 1 of the EU’s audio-visual and media policy, one paragraph declares that “The independence of regulatory bodies from governmental influence is a vital condition for free and independent media to flourish. Nomination and appointment procedures for all members of regulatory bodies should follow rules designed to protect their independence and impartiality. National regulatory bodies should be free from direct political  interference  and  should  have  a  positive  obligation  to  protect  human  rights,  including freedom of expression.”

Well this example was breached by the British government in its setting up of IMPRESS. So there was not too much adherence to EU policy there.

So it seems that as far as the UK goes, whether we are in or out of the EU makes no difference to the way the authorities crack down on journalists or protect them or their sources.

Another issue of relevance to journalists is copyright.  Here the UK as a member of the EU has delegated its responsibilities.  The Commission is responsible for conducting negotiations on industrial and intellectual property within World Intellectual Property Organisation (WIPO) covering such matters as broadcasting, resale right, databases, and the protection of intellectual property rights.  How this responsibility will be repatriated to the UK is unclear. The general issues are covered by the international nature of WIPO which delivers default values in a similar way that trade matters failing any separate agreement will default to the General Agreement on Tariffs & Trade (GATT).

The Commission has been very supportive of the concept of moving content on-line.  It has sponsored Licences for Europe a process of dialogue with stakeholders involved in most aspects of publishing – including authors but not journalists.  It reached the stage in 2013 of getting most participants to make pledges on cross-border access and portability of services; user-generated content and micro-licensing; audio-visual heritage and text and data mining.  It is all exceedingly technical and it will be difficult for disparate stakeholders to arrive at consensus easily.

Judicial matters arising from the two European courts show a marked difference.

The European Court of Human Justice (ECHR) is not part of the EU. The ECHR provides a forum for the peoples of the 47 countries who have consented to its judicial authority. An individual, a group of individuals or one of the other contracting states can make applications to the Court where one of the 47 countries participating is accused of a breach of the Convention. Besides judgments, the Court can also issue advisory opinions. It has been quite resolute is defending journalists’ sources.

Chilling effect

In Financial Times & others v UK in 2009 where four newspapers had been directed to reveal their source of stories about a takeover bid, “The  Court  held  that  there  had  been  a  violation  of  Article  10 of  the  Convention. Emphasising  in  particular  the  chilling  effect  arising  whenever  journalists  were  seen  to  assist  in  the  identification  of  anonymous  sources,  it  found  that  the  interests  in  eliminating  damage  through  the  future  dissemination  of  confidential  information  and  in obtaining   damages   for   past   breaches   of   confidence   were,   even   if   considered   cumulatively,   insufficient   to   outweigh   the   public   interest   in the   protection   of  journalists’  sources.”

In Tillack v Belgium in 2007, a German reporter working on stories about irregularities at the EU had his home searched and records seized.  “The  Court  held  that  there  had  been  a  violation  of  Article  10 of  the  Convention.  It emphasised in particular that a journalist’s right not to reveal her or his sources could not  be  considered  a  mere  privilege  to  be  granted  or  taken  away  depending  on  the  lawfulness  or  unlawfulness  of  their  sources,  but  was  part  and  parcel  of  the  right  to  information.  It  found  the  reasons  given  by  the  Belgian  courts  to  justify  the  searches  insufficient.”

In Ressiot v France in 2012, the premises of L’Equipe and Le Point newspapers and the homes of journalists were searched after the  authorities  wanted  to  identify  the  source  of  the  leaks  in  an  investigation about drugs in cycle racing. “The  Court  held  that  there  had  been  a  violation  of  Article  10   of   the  Convention. It found in particular that the French Government had not shown that a fair balance had been struck between the various interests involved. The measures taken had not been reasonably proportionate to the legitimate aim pursued, having regard to the interest of a democratic society in ensuring and maintaining the freedom of the press.”

Many other cases affecting journalism are listed in which the main defendant has been, surprisingly, the Dutch government.

The European Court of Justice (ECJ) is different and is tasked with interpreting EU law and ensuring its equal application across all 28 member countries.

One case in recent years involved a journalist. This was Mikhalchanka v Council in 2014.  In 2011, Council had authorised sanctions against the Belarus government for its human rights record. It decided to impose travel bans on certain Belarussian citizens, including Mr Mikhalchanka claiming he was a senior, prominent and influential figure in the state-run Belarus TV network. It turned out he was nothing of the sort – simply a political commentator who toed the party line.  The Council’s ruling was annulled.

It seems that while both courts do venture into the journalism field, it is the ECHR that is most defensive of journalists’ rights.

Any social issues arising from Brexit, despite the present cries of triumph or despair, may take some time to emerge. One thing is sure, people – and particularly Eurosceptic publications – will no longer be able to trot the old familiar whinge of blaming regulations from Brussels. Neither will companies nor agencies be able to plead that their inaction was due to: “Brussels again, we can’t do anything about that.”

Just as today, attacks on the British press and journalist freedom by government and police will probably continue, EU or no EU. The only solution is English – and Scots – law that emulates the First Amendment to the US Constitution. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;…”   This right, as part of the Constitution, has been strenuously defended by publishers and journalists despite political attacks. Through it all, the Supreme Court has maintained the law.

Would that the UK had such an inflexible rule and such a robust defence of it.

By Norman Bartlett