When evaluating a journalist's right to freedom of expression, the European Court of Human Rights would look at a number of factors, including the context of the offending section as well as the general context of the situation in which it was expressed, a panel of representatives from the European Court of Human Rights said yesterday.
They were speaking during a seminar entitled 'Human Rights and Journalism: Do human rights protect journalists?' held at the University of Malta.
The panel was composed of Judge Giovanni Bonello, a member of the court, as chairman, Sir Nicholas Bratza, also a judge at the court in Strasbourg, and Ms Anna Austin, a solicitor at the registry of the court.
The seminar was organised by the Strickland Foundation in cooperation with the Centre for Communication Technology, and was attended by an audience made up of members of the legal profession and the judiciary, academics and members of the press.
Article 10 of the European Convention on Human Rights deals with freedom of expression, and reads:
"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. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises".
However, it was the second part of the article which came under scrutiny, with the panel quoting extensively from case law spanning over a quarter of a century, to explain how the court viewed the right of a person's freedom of expression to be protected, and in what circumstances:
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be 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 rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary".
Each of these clauses was discussed in depth, using examples from case law to demonstrate when the public interest and freedom of expression would on balance take precedence over the restrictions.
These ranged from the fine line when comments on a case which is sub judice become prejudicial to a person's right to a fair hearing, to when it is justified to break the law - such as tapping a phone or using confidential information such as tax returns.
The panel also looked at particular sectors targeted by the press, such as politicians, government and the judiciary, with the first two considered to be open to a considerable amount of leeway, but the judiciary often seen as part of an institution, the credibility of which should not be undermined although still subject to public scrutiny.
An important principle was that the press should not be sanctioned for making value judgments the truth of which could not be proved, as compared with factual statements which could.
This was always done on the assumption that comments had been made "in good faith" but apart from this common assumption, the cases cited showed that there was considerable debate on the subject, with some outspoken dissent even from the judges hearing the case itself.
Much of the court's work rested in looking at the comments in their context, whether this meant looking at the national mood on the issue at the time, looking at the whole of the article rather than just at the offending words, or on whether the journalist had written other articles on the subject.
Overall, the impression given was that in the interest of democracy, the press could and in some cases should exercise freedom of expression to the limits acceptable, however, with the all important proviso that this was 'in principle'.
Judge Bonello summed it up by saying that the court had come a long way, but that there were many areas which remained to be tried and tested.
"In 10 years' time, we will look back and find that what we are saying now has been expanded on tremendously."
The seminar was opened by President Guido de Marco who, in a brief speech, asked whether a person could enjoy complete freedom of the press unless he or she had the financial means to own his or her own newspaper.