Press freedom is a subject about which there is much to say. That’s why I’ve divided it into three articles. In this article I discuss what freedom of the press means. In the other two articles I discuss two ways in which press freedom is endangered: formal restrictions such as in dictatorships and informal restrictions such as self-censorship. This statement goes to the heart of press freedom: ‘I detest what you say, but I will defend your right to say it with my life.’ Voltaire For most of us, who grew up on an island of freedom, it is very self-evident that we can write without worry about evil regimes that oppress the people, about laws that conflict with human rights, about tyrants, dictators , injustice without sudden visits by suspicious officials or suspension due to anti-Dutch agitation and propaganda. We can also simply say that we think Balkenende looks like Harry Potter and that it is crazy that two journalists had to stay for a number of nights at the expense of the state. The Russian writer Andrei Amalrik wrote: Perhaps there are countries where freedom of expression is as easy for man as for the air he breathes.
First I will explain the concept of press freedom and discuss some important facts. In the second article I discuss the formal restriction of press freedom. I will quote, among others, the Soviet Union as an illustration. I then discuss the informal means of curtailing press freedom and show that there can be a big difference between theory and practice. These are less transparent, but all the more dangerous for a country like the Netherlands. In a country of a thousand opinions it is unthinkable that all but one newspaper would be abolished, but there is still room for conflicts of interest. And if the government doesn’t control the media, who’s in charge? So read how to silence the radio, the news and the newspapers; how to silence the press.
What is press freedom?
Freedom of the press is the freedom of the press, the fundamental right to make feelings and thoughts public. It is one of the main conditions for journalism to function properly. In the Netherlands, freedom of the press is enshrined in Article 7 of the Dutch Constitution:
- ‘No one needs prior permission to reveal thoughts or feelings through the printing press, subject to each person’s responsibility under the law.’
- ‘The law sets rules regarding radio and television. There is no prior supervision of the content of a radio or television broadcast.’
- ‘No one requires prior permission to reveal thoughts or feelings by means other than those mentioned in the previous paragraphs because of the content thereof, subject to everyone’s responsibility under the law. The law may regulate the giving of performances accessible to persons under the age of sixteen in order to protect public morals.’
- ‘The preceding paragraphs shall not apply to the making of commercial advertising.’
Freedom of the press is closely related to freedom of expression. In the Universal Declaration of Human Rights, Article 19 states very clearly:
‘Everyone has the right to freedom of opinion and expression. This right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas by any means and regardless of frontiers.’
Article 10 of the European Declaration of Human Rights states that freedom of expression should not be restricted when people are hurt, disturbed or shocked by the opinion. The article does state that freedom may be limited if it is provided for by law or if this limitation is necessary in a democratic society. This includes public safety, but also the health of the population and good morals.
Subject to everyone’s responsibility
Journalists should obey the law just like everyone else. The freedom of the press is guaranteed because one does not have to ask permission in advance. Naturally, every freedom also entails responsibility. Afterwards, journalists can be sued for what they have published. This is what Article 7 of the Dutch Constitution means, subject to everyone’s responsibility under the law.
It is sometimes said that the pen is mightier than the sword. A quote from the Bible book of Proverbs: Words have power over life and death. The word has creative power but also destructive power. Words are capable of sparking uprisings and wars, building and destroying reputations. And with the speed at which words can spread these days, so does their influence. An article can make someone to a certain extent, but it can certainly also break someone.
For this reason, there are rules to ensure that this dominant position is not abused. For example, a journalist can be prosecuted for incitement to (racial) hatred and violence. Invading someone’s privacy, blasphemy and insults can be the grounds on which someone is charged. Slander and libel both fall under the concept of insult. Defamation is tarnishing someone’s good name. Anyone who does this through the media is guilty of defamation. Defamation (Penal Code, Article 262) goes further. In that case, the writer commits defamation knowing that the alleged offense is contrary to the truth. Some other crimes and violations that journalists should beware of are discrimination, copyright infringement, plagiarism, taking bribes and unlawfully obtaining evidence.
Most journalists are probably also accountable to their conscience. Ethical boundaries, which are not laid down by law, play a role in a journalist’s choices whether or not to publish something. An important international guideline is the Code of Bordeaux. This code of conduct was adopted in 1954 by the International Federation of Journalists. This still applies as a standard for reporting. The code indicates that journalists must respect the truth, check facts, correct any errors properly and apply adversarial hearing. The latter means that the journalist always has to hear two sides of the story. How journalists perform in practice will differ, but this code is in any case a very good guideline for the press.
The right of non-disclosure
The right of professional secrecy is included in the Code of Criminal Procedure, but officially only applies to doctors, lawyers and notaries. In 1993, PvdA MP Erik Jurgens submitted a bill on a possible right of non-disclosure for journalists. This was never adopted because Jurgens left the room and his successor Maarten van Traa tragically died. The government of the day was not interested in a separate law to protect journalistic sources.
The Supreme Court, the highest court in the Netherlands, has now recognized the right of non-disclosure. The basic principle is that protection of a journalist’s sources is one of the essential conditions for the freedom of the press, which is particularly important in a democratic society. The right to remain silent can be waived if the journalist himself is a suspect or if there is a public interest in the source being made known. When there is a public interest, this is probably a gray area, but the law protects the freedom of the press in the sense that a Dutch journalist can in any case invoke the right of non-disclosure.
Reporters Without Borders
One of the organizations that monitor press freedom is Reporters Without Borders. Abroad, the organization is known as Reporters Without Borders, Reporters Sans Frontières and Reporteros Sin Fronteras. The VZG is an international non-governmental organization that researches and promotes press freedom. It is a small organization, but it is recognized for its regular reports and press releases on press freedom. (The 2006 list has been added to the appendices at the back of this paper.) What is perhaps striking is the high score achieved by the United States.
In 2005, the VZG, together with the Cuban protest movement Women in White and the Nigerian lawyer and human rights campaigner Hauwa Ibrahim , received the Sakharov Prize for Freedom of Thought from the European Parliament. In Chapter II I cited Article 19 of the Universal Declaration of Human Rights. This article is the basis and inspiration for the organization. In September 2005, the organization published the Handbook for Bloggers and Cyber-Dissidents. This handbook provides practical tips for publishing anonymously on the Internet and circumventing censorship. The VZG is a member of the International Freedom of Expression Exchange, a network of non-governmental organizations that monitor and safeguard the right to freedom of expression worldwide. Campaigns are conducted through this network to defend journalists and writers who are persecuted for exercising their right to express and exchange opinions.
Church of Scientology
An important legal case about the role of journalism and press freedom was the case of the so-called Church of Scientology – below is an image of the building in Amsterdam – against the publicist Karin Spaink and the website XS4ALL. In 1995, texts from the Church of Scientology appeared on a number of websites. Scientology believed that its copyrights had been infringed in this way and filed summary proceedings. However, Karin Spaink herself had obtained the texts from other websites. The background to the objection turned out to be fear of negative publications, the ground on which Spaink was sued was copyright. The publicist believed that the lyrics made clear why the Church of Scientology was despicable. Her role was to inform the public about this.
The president of the Hague court dismissed the claims on March 12, 1996. Spaink had in the meantime adjusted her website and a number of quotes from legitimately published texts remained. These quotes were permitted under Article 15a of the Copyright Act. According to the president, the websites involved were not liable for copyright infringements by third parties. This last statement caused some commotion, because legal experts hold newspapers and broadcasters responsible for the opinions of third parties that they publish. On June 9, 1999, the verdict against Karin Spaink was confirmed: she did not commit an infringement. The claims against the websites were also rejected.
However, the trial was not over yet. Both parties appealed. The Court of Appeal in The Hague ruled on September 4, 2003 that this partly concerned works that had not been lawfully published. But the Court is of the opinion that the right to freedom of information, described in Article 10 of the European Convention on Human Rights, should outweigh the copyright of the Church of Scientology in this case. The websites that made the publications possible could also not be accused of copyright infringement. The Church of Scientology files an appeal in cassation – having a higher court review the ruling of a lower court. However, on March 18, 2005, the public prosecutor and copyright expert DWF Verkade advised the Supreme Court to reject the cassation appeal.
Degree of press freedom
In most countries, freedom of the press is not as self-evident as it is in the Netherlands. Dozens of journalists are murdered every year because of the work they do. This number fluctuates and is mainly related to the number of conflicts taking place in the world. For example, thirteen of the 28 journalists killed during the 2003 armed conflict in Iraq. It is not possible to determine exactly how many journalists die while carrying out their profession. Many journalists disappear without a trace or are captured. It is also not always clear whether the journalistic work was the motive for an assassination attempt. The Committee to Protect Journalists tries to keep track of the numbers and causes and publishes the results.
The perpetrators are not always armies or dictators. Organized crime also attacks journalists. In Russia, the mafia often targets journalists. And in Colombia, it is the drug cartels that threaten, kidnap and sometimes kill reporters. The number of assassinations of journalists is not the only factor that determines the degree of press freedom in a country. A country like China, for example, is far from press-free. Newspapers are not allowed to report what they want and Chinese editors are regularly imprisoned and, if necessary, tortured. Yet only one reporter was murdered in ten years.
According to the 2006 ranking of the VZG, the Netherlands shares first place, together with Finland, Iceland, Ireland and Norway. Iran, China, Burma, Cuba, Eritrea, Turkmenistan and North Korea are among the 7 lowest scoring countries, with North Korea clearly having the biggest problems with press freedom. The list is based on observations of experts in the relevant countries. The focus is not only on torture and arrests, but also, for example, on the monopoly of certain media companies.