By Aishvarya Rajesh and Nadia Shalin
(Aishvarya is a 5th year law student and Nadia is a 4th year law student at NLU Delhi)
Introduction
Jurisprudence on the right to freedom of speech and expression enshrined under Article 19 of the ICCPR (and GC-34) recognises the importance of the ‘public watchdog’ function performed by journalists. It thus provides for the journalistic privilege to maintain the confidentiality of their sources. This privilege also extends to a heightened protection of journalistic expression, subjecting restrictions on journalistic expression to a stricter test of proportionality. Importantly, while such a privilege may be restricted on limited grounds provided in Article 19, it may not be subject to a state’s margin of appreciation. The margin of appreciation doctrine affords states a certain degree of flexibility in the interpretation/application of human rights law, so as to secure a balance with other rights or matters of public interest. This judge-made doctrine, originally developed for European Courts, is increasingly being used by other states and the UNHRC as well. However, this doctrine comes with its own set of limitations when the discretionary power is used to expand state control. This piece analyses the theoretical paradox caused by the introduction of a privilege to protect journalistic speech which is in effect rendered meaningless in the face of an unchecked margin of appreciation, indirectly subjecting the privilege to state control.
State Control over Journalistic Expression
In excluding Article 19 of the ICCPR from state’s margin of appreciation, the meaning and scope of terms such as ‘public morals’, ‘national security’, ‘public order’ and other grounds for restriction are sought to be given international law meanings, independent of states’ societal or cultural standards. However, there have been increasing reports of the abuse of such grounds like ‘national security’ and ‘public order’ by states to censor journalists, suppress legitimate criticism and thereby impede the democratic function performed by journalists.
Some illustrative examples include the Risen and Sterling Case where protection under the privilege was refused by the Supreme Court and a national security reporter of New York Times who wrote a book on the activities of the CIA (which was viewed as disclosure of national defence information), was forced to reveal their source (a former CIA employee). In India, the 2020 Media Policy of Jammu and Kashmir provides that journalists engaging in ‘anti-national activities’ shall be de-empanelled and subject to legal proceedings. In the case of Madhyamam Broadcasting Ltd. v. UOI, the Supreme Court came down heavily on the Union for denying security clearance to a Malayalam news channel on grounds of national security. The Court decried the use of such terminology like ‘anti-establishment’ stances to restrict press freedom and held that criticism of governmental policy cannot ever be brought within the ambit of constitutionally permissible restrictions on free speech. An extension of this issue was dealt with in the case of Secretary of State for Defence v Guardian, whose repercussion was that national security concerns almost certainly guaranteed the grant of a disclosure order. This is because – (i) if the alleged information was disclosed without any ‘interest of justice’ exceptions; or (ii) even if the information disclosed itself was not a national security issue, the disclosure order could still be granted on the grounds that it was more likely a government employee (who has a duty of confidentiality) responsible for the leak of such confidential information, making it prudent for the government to identify and remove such employee to prevent future risks to national security.
The US has tried to oppose state protection for journalism, in order to maintain parity in the freedom of expression enjoyed by journalists and other actors and to ultimately avoid media control. On the other hand, the EU has tried to justify positive state interventions for institutional protection of journalists in the form of an instrumental freedom linked to the performing a public interest function. It has been argued that while the latter purportedly provides institutional rights to operationalise an important privilege, it is actually an attempt at increased censorship by defining who can be afforded the status of a ‘journalist’ in the first place. A 2022 Australian study found that there were 11 different definitions for the term ‘journalism’, raising the question of whether journalists should be defined with reference to their responsibilities/function or just by accreditation/status. Using instruments like journalist accreditation policies and the framing of professional standards, states determine who qualifies as a journalist and therefore has access to such journalistic privilege. Therefore in extending institutional protections, states assume the power to undermine one of the most integral public functions of the press – to hold governments accountable and supply voters with important information.
This results in a ‘Privilege Paradox’, where the journalistic privilege, in an attempt to be separated from any margin of appreciation, finds itself looming in the shadows of state control/discretion, where the right to source protection is not extended to journalists under the garb of catch-all grounds like national security or public order. The ultimate result is a gap in the de facto privilege. This severely undermines the privilege and prevents information about crucial matters of public interest from being disseminated as envisaged u/Article 19, ICCPR. This concern was also highlighted in a 2013 Report of the Special Rapporteur as “The use of an amorphous concept of national security to justify invasive limitations on the enjoyment of human rights is of serious concern. The concept is broadly defined and is thus vulnerable to manipulation by the State as a means of justifying actions that target vulnerable groups such as … journalists…”.
Conclusion
The inclusion of journalistic privilege within the framework of Article 19, ICCPR, has protected it from being subject to a margin of appreciation. However, its interaction with grounds for restriction contained u/Article 19(3), ICCPR, like ‘national security’, ‘emergency’, ‘public order’ etc., are increasingly misused through ‘state discretion’, causing a theoretical paradox in the application of such a privilege. Such a paradox also creeps into the definitional issue vis-a-vis Journalistic Privilege, for instance attempts by States to extend institutional protection to a larger range of journalistic actors may also act as a justification for increased censorship and sovereign control over who may access such privileges. The exercise of journalistic functions is thus, in many instances, limited in furtherance of state interests. This paradox of journalistic privilege must be accounted for in not only identifying journalistic actors, but also safeguarding a privilege crucial in facilitating public debate and creating a marketplace of ideas through the supply of information in public interest.
(The opinions expressed in the blog are personal to the author/writer. The University does not subscribe to the views expressed in the article / blog and does not take any responsibility for the same.)
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