The Anti-SLAPP Research Hub reflects on media freedom on the 30th Anniversary of World Press Freedom Day

The Anti-SLAPP Research Hub reflects on media freedom on the 30th Anniversary of World Press Freedom Day
2023-05-03

What is World Press Freedom Day?

The 3rd of May was proclaimed “World Press Freedom Day” by the UN General Assembly in 1993. The Day raises awareness about the importance of independent media, threats to media freedom, and presents an opportunity for States to reflect on and recommit to protecting media freedom.

Why is Press Freedom Important?

Freedom of speech is one of the four fundamental freedoms outlined in the Preamble to the Universal Declaration on Human Rights. Freedom of speech finds expression in numerous international instruments, including the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

UNESCO considers media freedom to be “a prerequisite and a driver to the enjoyment of all other human rights”. Free flows of information support the realization of all human rights by keeping us informed on what rights we are entitled to, when those rights are being threatened, and whether any interference is justifiable. Free flows of information also support us in making informed decisions on all matters of private and public life. Freedom of expression is, in essence, the “lifeblood of democracy”.

The right to freedom of expression includes the right to hold opinions and to receive and impart information and ideas without interference by public authority. While it is not an absolute right, any limitations must be prescribed by law, be necessary in a democratic society i.e., proportionate, and pursue a legitimate aim (e.g., for national security, public safety, or to protect the reputation of others).

However, where a State seeks to interfere with media freedom – they will face a high bar to justify any interference. The right also imposes a positive obligation to safeguard the freedom and pluralism of the media and to create a favourable environment for participation in public debate. This is because – the European Court of Human Rights tells us - freedom of expression constitutes one of the essential foundations of a democratic society.

A free press provides a “marketplace” for competing ideas and opinions, in which the electorate may keep themselves informed. By supporting the free flow of information, a free press holds the government accountable to the electorate, preserves the separation of powers, and supports effective checks and balances across government. Equally, the press monitors the activities of private actors that impact matters of public interest. This is why the press is often referred to as a “public watchdog”. A threat to media freedom presents a threat to democracy, the rule of law and, consequently, fundamental rights.

Why is press freedom under threat?

It is hard to pinpoint exactly why press freedom is under threat – there are many reasons a government may seek to suppress an independent media. A government may invoke concerns of national security, public morality or safety, or territorial integrity. At times, an interference will be legitimate – where it can pass the high threshold set by human rights bodies such as the European Court of Human Rights. At other times, an interference may amount to a violation of the right to freedom of expression, and indeed other fundamental rights.

What we are really concerned with are illegitimate interferences with press freedom. These may include legal threats – such as strategic litigation against public participation (SLAPPs), economic threats such as capture by public or private actors and funding cuts, or even physical violence. In 2020 and 2021, UNESCO recorded a total of 117 killings of journalists and media workers worldwide. In Europe, we will remember, among others, Daphne Caruana Galizia, Peter R de Vries, Ján Kuciak, and Brent Renaud who were assassinated for reporting on fraud, corruption, crime, and conflict. The attempts on these journalists' livelihoods and lives have come from both public and private actors, and at times, the State has failed to provide a sufficient remedy for the actions of private actors.

In 2020, the Foreign Policy Centre conducted a global survey on threats to journalists. They found that legal threats were having the greatest impact on investigative journalists’ ability to continue working. While civil defamation was most frequently behind threats of legal action respondents also reported legal threats relating to criminal defamation, privacy, trade secrets, data protection, national security and copyright. Likewise, Index on Censorship has also noted an increasing reliance on data protection laws and pre-publication injunctions, with claimants seeking the removal of information, access to stored data, or to prevent future publication.

What is being done to protect media freedom?

Fortunately, there is action at the international, regional, and national level. This action is supported by strong civil society organisations, who are monitoring, reporting on, and supporting media freedom.

At the international level, the United Nations just held an expert seminar on legal and economic threats to the safety of journalists. The seminar builds on the UN Plan of Action on the Safety of Journalists and the Issue of Impunity. The Plan sets global standards for press freedom and is supported by several databases to monitor the state of press freedom both internationally and nationally. In support of the Plan, UNESCO also provides training to security forces, judges, and legal professionals.

At the regional level, the European Union has been particularly active. The proposed European Media Freedom Act (EMFA) and the proposed Anti-SLAPP Directive will combine to provide more robust protections for journalists and their sources. However, these initiatives are not without their flaws, and compromises during the legislative process are likely to water down the protections afforded to journalists by any draft legislation. These developments are worth keeping a critical eye on.

Several texts adopted at the Council of Europe refer to the problem of SLAPPs, and other forms of legal intimidation, and the ECtHR first referred to the term SLAPP in the 2022 judgement of OOO Memo v Russia. In 2021, the Coalition Against SLAPPs in Europe (CASE) launched a campaign for a Council of Europe recommendation. In response the Council of Europe established a working group on SLAPPs. The working group is comprised of experts in law and media policy. We can hope to see a draft recommendation in December 2023.

In the United Kingdom, the government of England and Wales held a consultation on SLAPPs and has committed to introduce Anti-SLAPP legislation. The Solicitors Regulation Authority has also provided guidance to legal professionals and has set up a reporting and monitoring system for SLAPPs.

Scotland is somewhat behind. However, a petition has been lodged by Roger Mullin calling for the introduction of Anti-SLAPP legislation. The Scottish Public Petition Committee considered the petition and has called for further evidence.

What is happening at the School of Law?

The School of Law hosts the Anti-SLAPP Research Hub. The Hub was established in 2022 to strengthen the University of Aberdeen’s long-term commitment to furthering freedom of expression and the rule of law. The Anti-SLAPP Research Hub provides a forum for legal academics, working across a range of legal disciplines, to research strategic litigation against public participation (SLAPP).

The Anti-SLAPP Research Hub has provided advice to the Coalition Against SLAPPs in Europe (CASE)the European Parliament and the European Commission, as well as co-authoring a Model Law which provided the basis for discussions concerning the EU’s draft Anti-SLAPP Directive. Training to lawyers across Europe on Anti-SLAPPs law has also been provided by the Hub through the PATFOX program. Recently the Anti-SLAPP Research Hub provided expert evidence at the UN’s expert seminar on legal and economic threats to the safety of journalists.

The Anti-SLAPP Hub cooperates with a variety of governmental and non-governmental organisations to tackle SLAPPs at a domestic, regional and international level. At the domestic level, the Hub provides research to support advocacy for legislative reform in Scotland. The Hub has made two submissions in support of the abovementioned petition. The Hub is holding a workshop on “Drafting a Model Anti-SLAPP Law for Scotland” in early June.

Published by School of Law, University of Aberdeen

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