We now have the Freedom of Information…….Can you now use your Freedom of Expression!!!
The counterpart to the right of access to information is the right to communicate and publish it freely to others. This right is fundamental to the democratic process as one based on dialogue and persuasion between informed citizens and between them and their representatives. In the context of media reporting of parliament, it is essential that any limitation on this right should be drawn as narrowly as possible.
Under standard human rights conventions and their jurisprudence, any restrictions on the freedom of expression are subject to a threefold test: they should be
a) ‘prescribed by law’;
b) such as are ‘necessary in a democratic society’, for example for the protection of national security or of the rights and reputations of others; and
c) ‘proportionate’ to these necessary purposes. The most frequent restriction that has been used to limit what can be said or written about parliamentarians concerns the damage to reputation, or ‘defamation’.
In most democratic countries it is accepted that the public role of politicians should make them more open to public scrutiny, and tolerant of a much wider range of comment and criticism, than might be reasonable for private persons. This assumption has also been endorsed in international jurisprudence on the freedom of expression. Nevertheless, some countries still have defamation laws which can be used to restrict the range of media reporting of politicians unduly. These can be particularly restrictive where they form part of the criminal law, with a possible penalty of imprisonment for journalists who overstep the line. In other countries it is the level of damages that can be awarded in civil cases which may act as a deterrent to robust public disclosure or criticism. In addition, some parliaments have broadly drawn contempt of parliament provisions which can be used to limit criticism or punish journalists for reporting leaked information. Other means that have been used to hamper legitimate journalistic reporting or criticism have included the withdrawal of accreditation to report parliamentary proceedings.
It is probably a good test of the robustness of a country’s democracy that parliamentarians are reluctant to have resort to such means to limit criticism or the flow of information to the public. But it is also in their hands to review restrictive legislation which may date from a less democratic era. In this context it is worth noting the report of a study group of the Commonwealth Parliamentary Association (CPA) on ‘Parliament and the Media’ held in February 2003. Among its many recommendations are these:
(6.2) Parliaments should repeal legislation, rescind Standing Orders and/or publicly abandon their traditional authority to punish the media and others for offending the dignity of Parliament simply by criticism of the institution or its Members.
(6.3) Inaccurate reporting should not be considered as contempt of Parliament. Contempt should be reserved for serious cases of interference with Parliament’s ability to perform its functions.
(8.2) Questions of eligibility for media access should be determined by the media itself. Parliaments should retain the right to suspend access for media representatives who violate Standing Orders or otherwise disrupt parliamentary proceedings.
(9.2) Criminal laws inhibiting free speech……should be revoked.
To these recommendations could usefully be added a principle from Article 19’s publication on defamation, referring to the right of journalists to refuse to name their sources, which of course has general applicability beyond defamation cases: ‘It is well established that the guarantee of freedom of expression entitles journalists, and others who disseminate information in the public interest, to refuse to disclose the identity of a confidential source.’