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Media Law
Rights of Journalists

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Restriction of speech
nNegative content regulation
nPrior restraints (incl. General censorship)
nIncidental restrictions

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Contempt of court – problem of pretrial publicity
nShould there be any restriction on the publication of matters relating to pending judicial
proceedings?
nThe primary purpose is to ensure that a fair trial can be achieved.
nTrial by media.
nScandalizing the court.
nContempt of Court Act 1981 (U.K.)
nstrict liability
nAustralia, New Zealand:
nA finding of contempt… depends upon proof that the publication has, as a matter of practical
reality, a real (or clear) and definite tendency to interfere with the administration of justice,
that is, to prejudice a fair trial.

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Contempt of court – U.S.A.
nThe general rule is that a publication cannot be punished for contempt unless there is a “clear
and present danger” to the administration of justice.
nSheppard v. Maxwell 384 US 333 (1966):
nA responsible press has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field. Its function in this regard is documented by an
impressive record of service over several centuries. The press does not simply publish information
about trials but guards against the miscarriage of justice by subjecting the police, prosecutors,
and judicial processes to extensive public scrutiny and criticism.
n[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio,
and the newspaper.

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Contempt of court – Czech Republic – Criticizing the Court
nIV. ÚS 23/05
nIn other words, each broadcaster, in connection with any programme broadcast, may claim protection
by referring to the fundamental right to free expression, be it a political broadcast, a review
programme addressing issues of public interest, or artistic and entertainment programming.
nThe petitioner is a journalist, the secondary party is a judge, and their professional honour is
thus located within a sphere of involvement which is public, and that is why openness of
information should apply to it. Reasoning on the impossibility of separating personal and
professional lives cannot grant a judge any immunity against public interest in the judge's
professional qualifications for holding such an office.

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Prior restraints
nPrior restraint in acts of expression, hindering the matters of expression, such as publication of
newspapers, magazines and other publications and broadcasts, etc. from reaching free society,
shutting the door on communication of its contents to readers or viewers, or delaying the
communication and thus destroying its significance has the effect of reducing the opportunities for
public criticism. Moreover, due to characteristics of prior control being such that it can not be
but presupposed, it easily becomes more far-reaching than after-the-fact sanctions, and in addition
to the possibility of its abuse, it is considered to have a more deterrent effect, in reality, than
after-the-fact sanctions. Therefore ... prior restraint on acts of expression is allowed only under
strict and definite requirements. (Japan; Constitutionality of prior restraint of a magazine 11
June 1986, Case No. 609 of 1981 (Supreme Court))
nThe dangers inherent in prior restraints are such that they call for the most careful scrutiny.
[...] This is especially so as far as the press is concerned, for news is a perishable commodity
and to delay its publication, even for a short period, may well deprive it of all its value and
interest. (U.K.; Douglas and Others v. Hello! Limited
21 December 2000, 2001 2 All ER 289)
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Prior Restraints
n„Spycatcher Case“ (Observer and Guardian v. U.K.):
nThe dangers inherent in prior restraints are such that they call for the most careful scrutiny on
the part of the Court. This is especially so as far as the press is concerned, for news is a
perishable commodity and to delay its publication, even for a short period, may well deprive it of
all its value and interest.
n„Pentagon Papers“ (New York Times Co. v. United States):
nAny system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity" ... The Government "thus carries a heavy burden of showing
justification for the imposition of such a restraint.

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Incidental restrictions
nThe judicial character of the system of registration is a valuable safeguard of freedom of the
press. However, the decisions given by the national courts in this area must also conform to the
right to freedom of expression. The Court observes that in the present case this in itself did not
prevent the courts from imposing a prior restraint on a printed media in a manner which entailed a
ban on publication of entire periodicals on the basis of their titles.  (Gaweda v. Poland)
nAn award of damages for defamation must bear a reasonable relationship of proportionality to the
injury to reputation suffered. (Tolstoy Miloslavsky v. U.K.)
nCosts of legal proceedings. (Campbell v. MGN Limited [2004] UKHL 22 – MGN Ltd. v U.K.)
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Journalists
nWho is journalist? Do we need any specific definition?
nSwitzerland: two years of prior experience in the media sector and the completion of a nine-week
academic training course.
nGreece: the conditions and qualifications requisite for the practice of the profession of
journalist shall be specified by law. (Constitution; 14-8).
nSpain, Italy: journalists entering the profession are required to pass an examination.
nJournalists in social media…?

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Journalists
nMark MADDEN. TITAN SPORTS, INC., v. TURNER BROADCASTING SYSTEMS, INC. (1998)
nTo summarize, we hold that individuals claiming the protections of the journalist's privilege must
demonstrate the concurrence of three elements: that they:
n1) are engaged in investigative reporting;
n2) are gathering news; and
n3) possess the intent at the inception of the newsgathering process to disseminate this news to
the public.
nMartha von BULOW, v. Claus von BULOW (1987)
nOn rare occasions the journalist's privilege has been invoked successfully by persons who are not
journalists in the traditional sense of that term. In Silkwood v. Kerr-McGee Corp., 563 F.2d 433
(10 Cir.1977), the court was called upon to determine whether a documentary film maker, a
third-party witness, was protected by a privilege from revealing confidential sources in his
deposition. The witness was a film maker who organized a production company for the purpose of
making a film having to do with the events surrounding the death of Karen Silkwood. The defendants
sought to depose the film maker and, in connection with his deposition, subpoenaed documents and
writings in connection with the film maker's investigation. The film maker appeared for the
deposition but, invoking his First Amendment privilege, refused to answer questions which called
for the disclosure of information given to him under agreements of confidentiality. The district
court denied protective relief to the film maker. The Tenth Circuit first considered the effect on
the validity of the journalist's privilege where the witness was not a regular newsman. It
concluded that the fact that the film maker was not a salaried newspaper reporter did not, in and
of itself, deprive him of the right to seek protective relief. The court therefore reversed the
district court. The court reasoned that: "His mission in this case was to carry out investigative
reporting for use in the preparation of a documentary film. He is shown to have spent considerable
time and effort in obtaining facts and information of the subject of this lawsuit, but it cannot be
disputed that his intention, at least, was to make use of this in preparation of the film."
n

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Compulsory Membership in Associations
nCosta Rica:
n[J]ournalism is the primary and principal manifestation of freedom of expression of thought. For
that reason, because it is linked with freedom of expression, which is an inherent right of each
individual, journalism cannot be equated to a profession that is merely granting a service to the
public through the application of some knowledge or training acquired in a university or through
those who are enrolled in a certain professional „colegio“.
nCanada:
nSince the accreditation scheme operates as a restriction of article 19 rights, its operation must
be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee
does not accept that this is a matter exclusively for the State to determine. The relevant criteria
for the accreditation system should be specific, fair and reasonable, and their application should
be transparent.
nSweden:
nThe purpose of the website as it is stated on the aforementioned and as have been unfolded by [the
defendant] must in light of the circumstances be understood to fall within the ambit of a
journalistic purpose to inform, exercise criticism and instigate debate on societal issues of
importance for the general public.

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Journalist as a public figure
nConstitutional court (I.ÚS 453/03):
n…of course, the arts, including journalistic activities and show business, and everything which
attracts public attention, are also a public matter.
n…journalist, is subject to heightened scrutiny, and must bear possible criticism for his opinions
and positions;

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Protection of sources - ECHR
nGoodwin v. United Kingdom
nProtection of journalistic sources is one of the basic conditions for press freedom as is
reflected in the laws and professional codes of conduct in a number of Contracting States and is
affirmed in several international instruments on journalistic freedoms. Without such protection,
sources may be deterred from assisting the press in informing the public on matters of public
interest. As a result, the vital public-watchdog role of the press may be undermined and the
ability of the press to provide accurate and reliable information may be adversely affected. Having
regard to the importance of the protection of journalistic sources for press freedom in a
democratic society and the potential chilling effect an order of source disclosure has on the
exercise of that freedom, such a measure cannot be compatible with Article 10 unless it is
justified by an overriding requirement in the public interest.

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Disclosure of journalists´ sources
nAustria - Federal Act on the Press and other Publication Media (Media Act):
nProtection of editorial confidentiality (§ 31)
n(1) Media owners, editors, copy editors and employees of a media undertaking or media service as
witnesses in a proceeding before court or an administrative authority have the right to refuse
answering questions concerning the person of an author, sender or source of articles and
documentation or any information obtained for their profession.
n(2) The right as stated in para 1 must not be by-passed by requesting the person enjoying this
right to surrender documents, printed matter, image, sound or data carriers, illustrations or other
representations of such contents or confiscating them.
n(3) The extent to which tapping of telecommunications of subscribers who are media undertakings or
optical and acoustical observation of persons with technical devices on premises of a media
undertaking are admissible, is governed by the Code of Criminal Procedure.

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Sweden – Freedom of the Press Act
n(Chapter 3) Art. 5. A person who, whether through negligence or by deliberate intent, inserts in
printed matter the name, pseudonym or pen-name of the author, or, in a case under Article 1, the
editor or source, against his wishes, or disregards a duty of confidentiality under Article 3,
shall be sentenced to pay a fine or to imprisonment for up to one year. The same penalty shall
apply to a person who, whether through negligence or by deliberate intent, publishes in printed
matter as that of the author, editor or source, the name, pseudonym or pen-name of a person other
than the true author, editor or source.

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Protection of sources - Lithuania
nTHE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA:
nThe disclosure of information identifying a source should not be deemed necessary unless it can be
convincingly established that the legitimate interest in the disclosure clearly outweighs the
public interest in the non-disclosure. Where journalists respond to a request or order to disclose
information identifying a source, the competent authorities should consider applying measures to
limit the extent of a disclosure.

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Protection of sources – U.S.A.
nBRANZBURG v. HAYES (1972)
nWe are asked to create another by interpreting the First Amendment to grant newsmen a testimonial
privilege that other citizens do not enjoy. This we decline to do. Fair and effective law
enforcement aimed at providing security for the person and property of the individual is a
fundamental function of government, and the grand jury plays an important, constitutionally
mandated role in this process. On the records now before us, we perceive no basis for holding that
the public interest in law enforcement and in ensuring effective grand jury proceedings is
insufficient to override the consequential, but uncertain, burden on news gathering that is said to
result from insisting that reporters, like other citizens, respond to relevant questions put to
them in the course of a valid grand jury investigation or criminal trial.
nSolers, Inc. v. Doe (2009)
nWhen presented with a motion to quash (or to enforce) a subpoena which seeks the identity of an
anonymous defendant, the court should:
n(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim,
n(2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed
and the subpoena has been served,
n(3) delay further action for a reasonable time to allow the defendant an opportunity to file a
motion to quash,
n(4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each
element of the claim that is within its control, and
n(5) determine that the information sought is important to enable the plaintiff to proceed with his
lawsuit.

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Question of sources
nElton John v. Express Newspapers plc (2000):
nSo that journalists can effectively discharge their right indeed their duty to expose wrongdoing,
abuse, corruption and incompetence in all aspects of central and local government and of business,
industry, the professions and all aspects of society, they have to receive information including
confidential information from a variety of sources including seedy sources and disloyal sources.

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Investigative Journalism
nCUMPĂNĂ AND MAZĂRE v. ROMANIA:
n…the Court would point out that the role of investigative journalists is precisely to inform and
alert the public about such undesirable phenomena in society as soon as the relevant information
comes into their possession.
nRUMYANA IVANOVA v. BULGARIA:
n… the applicant had still not adequately verified the facts from reliable sources and had thus
failed to comply with the customary rules of investigative journalism, publishing facts which she
knew or ought to have known were dubious (see paragraphs 26 and 30 above). The Court sees no reason
to hold otherwise. Nor does it consider that the applicant was dispensed on other grounds from
properly verifying her information.

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