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17.05.2016

Investigative journalism: new comparative study on legal regulations across Europe

As part of the work of ECPMF, its consortium partner EMR, the Institute of European Media Law, has conducted a study on the state of press and media freedom in Europe. It describes and analyses media freedom at the European and at the national level, and compares the different legal frameworks that are relevant for investigative journalism, for example state and trade secrets, surveillance and secret recording. Countries included in the study rank from shining examples of press freedom like Finland to highly-criticised Turkey.

Comparative Study on Investigative Journalism_EMR

On the basis of this extensive analysis, the report identifies the need for improvement and provides best practices for better protection of press and media freedom. Most of the data used for the comparative analysis has been obtained from country reports by national experts selected from the EMR media network. They are attached to the study and describe the relevant legislation with practical cases in the press and journalistic sectors.
The study is divided into three main parts. The first part describes the European legal framework that regulates press and media freedom. Then there is a comparative analysis of the national legal systems, which identifies differences and common traces of those legal systems governing press and media freedom at a national level. Third, best practices are presented to achieve a better protection of press and media freedom in the states under analysis.

Protective and restrictive rules

National experts have outlined legal regulations regarding the use of illegally or improperly obtained information, such as state or business secrets or audiovisual recording made in secret. Also regulations regarding the boundaries of law enforcement during the search of editorial offices, seizure of documents or (press) material and the surveillance of journalistic communication are detailed. In the next step, the national experts also describe the journalistic duties and the legal and practical differences in how liability is asserted to different persons within the “editorial chain” of a journalistic product.

Overall, the study comes to the conclusion that all states that were analysed protect the freedom of expression on the constitutional, the statutory and the self-regulatory level. However, restrictive rules for the freedom of the press and media can also be found in all countries. The range of those protective and restrictive regulations is very wide and many differences can be found in the various legal systems with consequences for the freedom of the press and media.

However, the analysis of the existing legal systems alone is not sufficient to determine the status of the freedom of the press and media. This is why the practical application of the protective and restrictive rules also needs to be taken into consideration when analysing the freedom of the press. Still, a first step for a better protection of the freedom of the press and media is a better protection within the written law.

Are journalists allowed to break the law?

Journalists might infringe the law while trying to obtain information. While in many states, courts take into consideration the importance of the freedom of the press when deciding on criminal charges against journalists, yet a risk of conviction always exists. Therefore, a decriminalisation of journalists for acts committed while trying to obtain information would significantly improve the situation.

Another field the study examines is the question of a ‘public interest’, which is often needed to justify a journalistic action – but which is hardly ever defined and often a matter of interpretation.

The search of editorial offices and the seizure of journalistic material is possible in all states. In most states an ex ante review by a judge is necessary for the search of editorial offices. Rules allowing the search of editorial offices without prior review by an independent and impartial decision-making body should be abolished, the report recommends.

The duty to protect a source

Most states have rules concerning the protection of sources, which allow journalists to refrain from testimony in court proceedings and prohibit the search of editorial offices and the seizure of journalistic material. Where such rules are missing, they should be introduced. Exceptions should be prescribed by law and apply only if they are necessary for the protection of an equally important right. Preferably, only adequate grounds of suspicion against the individual journalist should constitute an exception. In any case, no exceptions should apply which use indeterminate legal concepts, such as the ‘public interest’. Rather, only clearly defined exceptions should be foreseen.

In some states the right to protection of sources is not just a privilege, but a duty for journalists as well. In those states journalists are not allowed to reveal their source. Exceptions should apply to a journalist’s duty to keep the source of information confidential in case a journalist has been provided with false information and has been used in order to distribute that information.

Possibilities for improvement in all countries analysed

With the changing and increasingly digitalised media landscape, the rules for the protection of the freedom of press and media need to be adapted accordingly. Today, many journalists are not employees of a media company or do not exercise journalism as a profession, e.g. many bloggers. The protection of bloggers varies in the states under analysis. In many of them, the legal systems have not yet been adapted accordingly and often do not foresee any regulation with regard to online journalism.

Everybody who does journalistic work should benefit from all regulations regarding the protection of the freedom of press and media. But all journalistic duties and obligations, such as the obligation to report the truth, distinguish facts from comments, respect people’s privacy and so on, should apply to that group of persons, too, because many rights can be infringed if all information is available to everyone at all times. Therefore, everybody who does journalistic work should be subject to restrictive rules protecting third party rights, too.

Overall, possibilities for improvement exist in all the states in this study. But the importance of further improvements for a better protection of the freedom of press and media varies from state to state, due to the current level of protection. Therefore, it is to be hoped that further harmonisation of standards can be achieved, e.g. by case law of the European Court of Human Rights, which impacts indirectly all states and by internationally co-ordinated self-regulatory measures and with a view to practices in other states. This comparative study is aiming to contribute to this process.






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