Attacks against the Fourth Estate
Doris Buijs

While you might think that firefighters or the police have the really dangerous jobs, we live in a world where journalists are increasingly being attacked. During the Covid-19 crisis, the number of attacks on the physical safety and integrity of journalists in Europe doubled. In this blogpost, we examine the European legal framework protecting journalists and the right to freedom of expression, the different forms of threats, harassment and violence that journalists and media actors face when carrying out their role as public watchdog, and how the climate of impunity facilitates the threats, harassment and violence targeting journalists.

European legal framework and urgency of (legal) protection

We will start this blogpost with a recap of the European legal framework protecting journalists and their (online) safety. Article 10 of the European Convention on Human Rights (ECHR) protects the right to freedom of expression. This right encompasses the public’s right to receive information and ideas on matters of public interest, as well as the media’s task to impart such information. In order to fulfil this task, journalists must be safe and protected from threats, harassment and violence. Several other human rights safeguarded by the ECHR are important for journalists’ safety, e.g. the right to life (Article 2), the right to respect for private and family life (Article 8) and the freedom of assembly and association (Article 11).

These core provisions in the ECHR are not the only way in which journalists are protected. The European Court of Human Rights (ECtHR) has elaborated on the urgency of journalists’ safety and the importance of journalists for our democracy in its extensive case-law around Article 10 ECHR. One of the most important cases is that of the murdered Turkish-Armenian journalist, Fırat Dink. The ECtHR ruled in Dink v. Turkey that Council of Europe member states have a positive obligation to create a favourable environment for participation in public debate. Safety of journalists and media actors of all genders is a precondition for a safe and pluralistic public debate. Journalists must be effectively protected in order to be able to express their ideas and inform the public without fear. Journalists must, for example, be protected against searches and seizures, as the ECtHR found inErnst and others v. Belgium. Another basic condition of press freedom is the protection of journalistic sources: as affirmed by the ECtHR in Goodwin v. The United Kingdom, journalists should not be forced to disclose the identity of their confidential sources.

Lastly, the Committee of Ministers of the Council of Europe has adopted several standard-setting instruments, aiming to help member States with the implementation of the legal obligations flowing from the ECHR. In 2016, the Committee of Ministers adopted a Recommendation on the protection of journalism and safety of journalists and other media actors. The Recommendation provides member states with guidance on several legal, administrative and practical measures that should be adopted or applied to safeguard journalists’ safety. It is built around four pillars: prevention, protection, prosecution (including a specific focus on impunity) and promotion of information, education and awareness raising.

All of these conditions and obligations – which are based on the ECHR, the ECtHR’s case-law and the Council of Europe’s policy instruments – are of key importance for journalists and media actors to fulfil their role of public watchdog and contribute to society’s right to receive information and ideas on matters of public interest.

In addition to the Council of Europe framework, EU legislation, e.g., the Charter of Fundamental Rights of the EU (the Charter), also plays an important role in the protection of journalists in Europe. Besides the legally-binding Charter, the European Commission can also propose recommendations, as it has done for instance on the protection of journalists. Although such recommendations are not legally-binding, they can offer guidance on the interpretation of EU law.

Forms of threats, harassment and attacks

The safety of journalists and media actors cannot be taken for granted. Journalists and media actors face many types of threats, harassment and violence. Those attacks can come from state actors as well as private actors such as businesses or organised crime. The attacks aim to intimidate and silence journalists and prevent them from informing the public on matters of public interest.

Physical attacks

First, journalists can be victims of threats to (physical) safety, assaults or even murder. There is a growing list of high-profile journalists who have been murdered, including a Dutch crime reporter, Peter R. de Vries, who was shot in July 2021 and died a week later from his injuries. And this is not just one extraordinary, terrible, example. In 2019, the 29-year-old journalist, Lyra McKee, was shot dead while covering riots in Northern Ireland. The Slovak investigative journalist, Ján Kuciak, who reported mainly on (tax) fraud and corruption, and his fiancée were killed in their home in 2018. The leading Maltese investigative journalist, Daphne Caruana Galizia, whose reporting focused on corruption and government malpractices, was murdered in 2017 by a car bomb. And in 2006, the Russian journalist, Anna Politkovskaya, was shot dead in the elevator of her apartment. These attacks are often a form of retaliation for the journalists’ reporting on matters of public interest.

Legal threats

Besides physical attacks, there’s also the possibility of legal threats. Such threats are often possible due to legislation that is restrictive of the right to freedom of expression which can seriously obstruct journalists in exercising their profession. Examples of such restrictive legislation are Poland’s decision to limit journalist’s access to a border region, and the Greek parliament’s amendment to its criminal law to extend the definition of “false information”.

Moreover, arbitrary interpretation of (already restrictive) legislation containing ambiguous wording can open the door for “diverging interpretations by the courts”. The Safety of Journalists Platform has described how this was the case in respect of Azerbaijan’s amendment to its media law in December 2021.

Restrictive legislation and potential arbitrary interpretation of such legislation facilitates abusive lawsuits against journalists and media actors. These abusive lawsuits, which are commonly without base, are called strategic lawsuits against public participation, otherwise known as SLAPPs. As the Coalition Against SLAPPs in Europe (CASE), a coalition of NGOs working on (protective measures against) SLAPPs, explains: the often wealthy and powerful litigants’ objective is not to “redress the plaintiff’s breached legal rights but to intimidate and harass the target into silence”. As such, litigants abuse the law, which is described by the ECtHR as “the harmful exercise of a right for purposes other than those for which it is designed” in its Practical guide on admissibility criteria. For an extensive overview of the ‘abuse of right’ concept (including analysis of the ECtHR’s interpretation), see Chapter 6 of the 2021 study ‘Strategic Lawsuits Against Public Participation (SLAPP) in the European Union’ by Judith Bayer and others. Thus, the objective of a SLAPP is to prevent journalists, and others, from (further) publishing on a topic of public interest. Targets of SLAPPs include journalists, media actors, civil society – anyone who is actively participating in public debate and speaking out on matters of public interest. SLAPPs can be very costly due to court fees, expensive lawyers and due to the time investment required. In addition, SLAPPs can cause severe psychological harm, which is described in more detail in Chapter 3.3.3 of the 2022 CASE report. Such intimidation and abuse of the law can have a chilling effect, thereby stifling public debate. The mere threat of a SLAPP can also have a chilling effect, as journalists wish to prevent the possible far-reaching negative effects of such proceedings (see further on the chilling effect of SLAPPs, Chapter 3.3 of the 2022 CASE report).

The Committee of Ministers of the Council of Europe stresses the importance of the prevention of misuse of legislation against journalists in Guideline 13 of the 2016 Recommendation. At the time of writing, the Council of Europe Committee of Experts on Strategic Lawsuits against Public Participation (MSI-SLP), was preparing, for consideration and adoption by the Committee of Ministers, a draft Recommendation CM/Rec(20XX)XX to member states on countering the use of SLAPPs.

At the EU level, the European Commission has put this problem on the agenda by proposing an anti-SLAPP Directive. An overview of legal instruments which have been used in the EU for the purposes of SLAPPs has been set out in Chapter 7.1 of the 2021 study by Judit Bayer and others.

Financial threats

In addition to physical attacks and legal threats, states (as well as private actors) sometimes try to obstruct journalists financially, e.g. by states cutting off subsidies or by public and private actors withdrawing certain (paid) advertisements, affecting media organisations’ business model. The Committee of Ministers of the Council of Europe underlines in its 2016 Recommendation under paragraph 37 that a chilling effect can also be produced by discriminatory allocation of press subsidies or state advertising revenue, “in particular for smaller media organisations and in precarious economic climates”. As such, financial threats and measures can weaken the position of free and independent media. The European Union addresses such threats in its proposal for a European Media Freedom Act (draft Article 24 ‘Allocation of state advertising’).

The impacts of these financial threats can be heightened for journalists with an already weakened position because of increasing financial challenges (e.g., smaller media organisations). In addition to the difficulties around potential state dependencies, local news organisations can hardly compete with the business models of large online platforms. A large and growing part of news is consumed through online platforms, which makes journalists and news organisations increasingly dependent on platforms. The migration of advertising revenue to online platforms has exacerbated this weakened position of certain media organisations. Smaller, local news organisations have been hit particularly hard by this new economic reality in journalism, as stressed by the Council of Europe’s Committee of Ministers in its 2022 Recommendation on promoting a favourable environment for quality journalism in the digital age.

Online threats

In an increasingly digitised sphere, threats, harassment and violence targeting journalists and media actors also take place online, e.g., through doxing, surveillance, hacking or DDOS attacks. Doxing is “the intentional public release onto the Internet of personal information about an individual by a third party, often with the intent to humiliate, threaten, intimidate, or punish the identified individual” as defined by Douglas in his 2016 paper, ‘Doxing: a conceptual analysis’. Surveillance is a way of attacking journalists directly, by invading their privacy through digital means, for instance, the use of spyware to monitor journalists can lead to the “arrest, intimidation and killings of journalists”. Hacking and DDOS attacks are ways of attacking journalists, by attacking the means through which they do their work; tracking their phones (which are used to communicate with their sources) or attack the sites on which they disseminate their output (DDOS). Journalists are also often attacked online through the disinformation attacks, smear campaigns and public discreditation of their work, e.g., by dismissing or framing their work as “fake news”. A well-known example of this is the former US president Donald Trump’s propaganda tactic of attacking his critics. One of the main effects of dismissing journalistic content as “fake news”, is the undermining of the media. This causes a decrease in trust in journalists, as stressed in the report ‘Information disorder: Toward an interdisciplinary framework for research and policy making’ by Wardle and Derakhshan, in which the authors examine mis-, mal- and disinformation and their related challenges.

More information on attacks against journalists is provided in Chapter 1, ‘Narratives of Intimidation’, of a Council of Europe study, ‘A mission to inform. Journalists at risk speak out’; it identifies four types of threat and pressure: physical, psychological, judicial or legal, and economic.

Culture of impunity

An essential factor in the threats, harassment of and attacks against journalists, and also one of the main reasons why this abusive climate for journalists persists, is the culture of impunity. Council of Europe member states have a positive obligation to carry out effective investigations into such attacks and to prosecute the perpetrators – as was held by the ECtHR in the case of Özgür Gündem v. Turkey. Nevertheless, those responsible for the attacks (both the perpetrators and the masterminds behind them) often remain unpunished, and the cases around the attacked journalists unresolved. This climate of impunity “can fuel further threats and violence, and undermine public trust in the rule of law”, as the Committee of Ministers emphasised in paragraph 3 of its 2016 Recommendation.

And this happens, while access to justice is a key element of democratic society and to guarantee practical and effective rights, as the ECtHR held in the case of Airey v. Ireland. Drawing on the case-law of the ECtHR, the 2016 Recommendation sets out a number of general requirements that the investigations carried out by police and public prosecutors must meet in order for those investigations to be effective. One of those requirements is to establish “whether there is a connection between the threats and violence against journalists and other media actors and the exercise of journalistic activities or contributing in similar ways to public debate” as stated in Guideline 19 of the 2016 Recommendation. This has been underscored by the ECtHR in the case of Anna Politkovskaya, Mazepa and others v. Russia, and in the case of Khadija Ismayilova v. Azerbaijan; the investigation of such a possible connection is of “utmost importance”. In 2020, the Council of Europe published an Implementation Guide to help member states implement the 2016 Recommendation.

Tackle the attacks

If journalists and media actors are no longer able to investigate and publish on matters of public interest, they can no longer fulfil their role of public watchdog and inform the public. This can ultimately lead to the erosion of public debate. As journalists and media actors face so many different forms of attacks, multistakeholder efforts are needed to counter the causes and effects of these attacks. All actors in society, especially states, must play their role to prevent the doomsday scenario of journalists being the absolute underdogs. This way, we strive for a society in which journalists can perform their role as public watchdogs safely and effectively; a pre-requisite for any democracy to flourish.