17th January 1999

This call for freedom of information

By Kishali Pinto Jayawardena 

They 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 healthcare facilities, in this case, abortion. 

The Open Door Counselling judgment, delivered in 1992, dealt with the right to impart and receive information in general. The rights and responsibilities of the media, in the context of freedom of information, has however been discussed recently by the European Court in a judgment hailed by some of the more avant garde European newspapers as "sensational". 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 Court proceeded on interesting reasoning. 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? The questions were controversial and clearly not easy to answer.

The European Court first identified the two conflicting principles thus; "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 Court 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. It was said 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 Court concluded, in careful 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, in a sense, surprising as previous opinions by the Court have inclined in the same direction. Journalists had been given a particular licence to disseminate information, based not only on views expressed by themselves but also by others. In instances where the state had taken up the position that "duties and responsibilities" restricted an individual's exercise of the right to impart information, two counterbalancing arguments have been given ear to. The first is that any individual, a civil servant or a journalist who has access to information of great importance has a right to disseminate that information, overriding state concerns that the information should be kept secret, as for example, in instances where there is wide scale governmental corruption or a compelling degree of public indignation about a particular issue. The second is that the "duties and responsibilities" caution should be applied not only to individuals but to the State itself, as for example, where it withholds information about a public interest matter or even about an individual, to the detriment of that individual. This reasoning is, in fact, based on decisions in the United States Supreme Court protecting "whistleblowers" (those who expose fraud or abuse of the public trust by the Government) and by a whole heap of Freedom of Information Acts across the world.

The recent decision of the European Court will undoubtedly have considerable impact not only in Europe but in other continents as well. In Sri Lanka, judgments of the European Court have been considered by the Sri Lankan Supreme Court, most notably when dealing with arbitrary arrest and detention, thus effectively weakening the argument expressed by some that European or American legal developments are not relevant to us. Whether the same judicial magnanimity would be seen in instances where media and information rights are involved remains to be seen. Meanwhile, moves are on to bring a Freedom of Information Act that has a specific bearing on media rights before Parliament. 

All this, of course, is based on the assumption that the Sri Lankan media, on its own part, has the capability to handle a greater professional responsibility. Without this touchstone of trust, proponents of the "freedom of the wild ass" theory can only hold triumphant sway whenever it is urged that a Sri Lankan Freedom of Information Act be enacted. An obvious caution indeed, but one that the media would do well to bear in mind. 

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