Focus on Rights

Where the duty to investigate is paramount
In the wake of particular developments in the media recently, wherein investigative journalism in the context of issues relating to the judiciary in this country has been put in issue, including action being taken against particular newspapers for contempt of court, it behoves us to look at the manner in which the media is expected to perform its role in imparting information, thus enabling the right to expression and thought to be exercised by individuals in this country.

In "Defending Free Speech", an informative publication released to mark ten years of its work as an international media rights watchdog, Article 19 refers with some pride to their successful submission to the European Court of Human Rights (EUCT) in the Open Door Counselling case, which led to a landmark ruling by the Court as regards the right to receive information.

The case itself was somewhat unique. Two Irish counselling clinics had complained to the EUCT that they were being restrained by the Supreme Court of Ireland from giving information to their clients as to the location, identity of and method of communication with abortion clinics in the United Kingdom. The clinics argued that this interfered with their right to impart information and the right of women to receive such information, in the event of being pregnant. Their argument was upheld and the state was declared to have no right to withhold information from its citizens about health care facilities, in this case, abortion.

The Open Door Counselling judgement, delivered in 1992, dealt with the right to impart and receive information in general. The rights and responsibilities of the media, in the specific context of freedom of information has been however, discussed recently by the EUCT in a judgement hailed by some of the more avantgarde European newspapers as "sensational" at that time. The judgements of the EUCT, though not directly applicable to Sri Lanka, are of high persuasive value and have been followed by Sri Lankan judges in numerous instances.

In De Haes and Gijsels V Belgium, the question was whether a published article accusing four Belgian judges of bias in the handling of a case was defamatory. In dispute was a mass of articles containing detailed information about the circumstances in which that particular decision had been taken. The Antwerp Court of Appeal had upheld the judges action for defamation but their decision was set aside by the European Court.

The EUCT proceeded on an interesting line of questioning. What was the extent of the right of a journalist to impart information to the public? To what degree could this be limited to protect the rights and reputations of others, in this instance, the rights of judges and the Advocate General who brought proceedings?

Some basic principles were identified in this regard." The press plays an essential role in a democratic society. Although, it must not overstep certain bounds, in particular in respect of the rights and reputations of others, its duty is nevertheless to impart-in a manner consistent with its obligations and responsibilities-information and ideas in all matters of public interest, including those relating to the functioning of the judiciary. The courts- the guarantors of justice, whose role is fundamental in a State based on the rule of law-must enjoy public confidence. They must accordingly be protected from unfounded destructive attacks, specially in view of the fact that judges are subject to a duty of discretion which precludes them from replying to criticism…."

Having said this, the EUCT pointed out that the information disclosed by the journalists was based on thorough research into the allegations against the accused (Mr X) in the particular case and on the opinions of experts who had advised disclosure of such facts in the interests of his children (the victims) That being so, the journalists could not be accused of having failed in their professional obligations by publishing what they had learned about the case. Rather, the EUCT maintained that;

" ………….it is incumbent upon the press to impart information and ideas of public interest. Not only does the press have the task of imparting such ideas, the public also has the right to receive them. This is particularly true in the instant case, given the seriousness of the allegation which concerned both the fate of young children and the functioning of the system of justice in Antwerp"

What then, of the allegation that, by publishing the articles that were critical of the judges who sat in the case, the journalists had committed defamation? The judges and the Advocate General complained mainly of the personal attacks to which they considered to have been subjected, of making unproved statements about their private lives and of having drawn defamatory conclusions that they had not been careful in their handling of the case. Their claim was not accepted. The information gathered by the journalists were held to be in itself, capable of justifying criticism of the decisions taken by the judges and by the Advocate General.

The EUCT concluded, in carefully reasoned language, that the opinions expressed by the journalists regarding the judges were therefore not excessive to the case." Freedom of expression is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference but also to those which offend, shock or disturb the State or any section of the community. Journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation" the European Court said.

The decision in the case is not all that surprising as previous opinions by the EUCT have inclined in the same direction. Journalists are given a particular licence to disseminate information, based not only on views expressed by themselves but also by others, particularly where there is an overriding public interest factor, as for example, wide scale governmental corruption or a compelling degree of public indignation about a particular issue.

The EUCT has also imposed a duty upon a state not to withhold information about matters that are of importance in the public interest or to penalise individuals in government administration who do disclose such information, based on 'whistleblower protection" clauses in many freedom of information laws around the world. As far as Sri Lanka is concerned, painstaking attempts last year to draft a Freedom of Information Act similar to the Indian and Pakistani laws, have been suspended for all intents and purposes due to a palpable lack of political will on the part of the present administration.

This country is now in an age of peculiar contradictions where the Rule of Law operates primarily as a facade. Indeed, the media itself has been found significantly wanting in its failure to communicate information in a fair and non-political manner on many issues, most particularly in regard to the significant deterioration of basic institutions of governance, including the judiciary. For those who venture out of this failed process, it is an exercise full of dangers. Yet, it will be only as a result of the ventures of this few that some order may yet, come out of the chaos.

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