APPENDICES
¶2.18 Cases have drawn a distinction between reporting facts capable of contributing to a debate
of general public interest in a democratic society, and making tawdry allegations about an individual's private life.25 In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a "public watchdog" are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person's strictly private life.26 Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation.27
Relevance of responsible journalism and ethical journalism in the context of Article 10
¶2.19 The ECtHR has repeatedly held that it is not for the courts to substitute their own views
for those of the press as to what technique of reporting should be adopted by journalists.28 However, the ECtHR has on number of occasions recognised that responsible journalism and compliance with the ethics of journalists will be a factor, and in some cases, a highly significant factor, in determining whether an interference with the right to freedom of expression is justified and proportionate.
¶2.20 The ECtHR held in Flux (No 6) v Moldova that:29
"… under the terms of paragraph 2 of Article 10, the exercise of freedom of expression carries with it "duties and responsibilities" which also apply to the press… the Court will examine whether the journalist who wrote the impugned article acted in good faith and in accordance with the ethics of the profession of journalist".
¶2.21 The ECtHR has also held that:30
"… the safeguard afforded by article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide "reliable and precise" information in accordance with the ethics of journalism."
¶2.22 The conduct of a journalist cuts two ways. If a journalist has acted responsibly, in good faith,
1849and in accordance with the ethics of journalism, these factors are likely to support an argument that freedom of expression should prevail over competing interests. There are a number of cases in which the ECtHR has referred to the fact a journalist has acted in conformity with professional ethics as part of the consideration whether there is a legitimate and proportionate interference with Article 10.31 On the other hand, in cases where journalists have not acted
¶Appendix 4 | Legal Materials
with responsibility or have disregarded the ethics of the profession, this will support an argument that the interference with the freedom of expression is justified. For example, the case of Prager and Obserschlick v Austria concerned a journalist who had accused a judge of being biased and of having an arrogant and bullying attitude in the performance of his duties. The Court addressed the behaviour of the journalist and took the view that he could not invoke either good faith or compliance with the ethics of journalism, on the basis that the research that he had undertaken did not appear adequate to substantiate such serious allegations, the court noting that:32
"… [he] had not attended a single trial before Judge J.. he had not given the judge any opportunity to comment on the accusations levelled against him".
¶2.23 The conclusion as to the journalist's conduct was of pivotal importance in the Court's overall
determination. This case also illustrates that the adjudication by the Court of the proper standards to be expected of journalists may lead to different views, which can be seen in the dissenting opinions which took the view that the conduct of the journalist in this case could not per se be held to fall short of the standard of proper journalistic care.
¶2.24 In the case of Stoll v Switzerland the Court explained that the ethics of journalism required a
distinction to be drawn between the manner in which the applicant obtained the information and the form of the impugned articles.33 The Court undertook a detailed analysis of the manner in which the journalist had obtained a report and considered the extent to which he was responsible for leaking the document or whether he had acted illegally. The Court also undertook a comprehensive analysis of the articles themselves, noting that the question whether the form of the articles published were in accordance with journalistic ethics carries weight, and concluded that there were a number of shortcoming in the articles in respect of the content, vocabulary, and editing of the article, including sensationalist style of headings, inaccuracies in the articles and prominence of the articles within the newspaper. The Court therefore agreed with the opinion of the Swiss Press Council that the articles were in breach of the declaration on the rights and responsibilities of journalists adopted by the Swiss Press Council. The Court concluded that the content of the articles and the fact they were likely to mislead detracted from their contribution to the public debate that is protected by Article 10.
¶2.25 In Flux (No 6) v Moldova it was held that the Court will examine whether the journalist who
1850wrote the impugned article acted in good faith and in accordance with the ethics of the profession of journalism.34 In the Court's view, this depended in particular on the manner in which the article was written and the extent to which the applicant newspaper could reasonably regard its sources as reliable with respect to the allegations in question. The latter issue must be determined in light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight.35 The Court considered that disregard of journalistic ethics may undermine the rights of others guaranteed by the Convention, holding that "the applicant newspaper acted in flagrant disregard of the duties of responsible journalism and thus undermined the Convention rights of others"36. An assessment of the ethics of journalism appeared to be clearly embedded in the Court's analysis, concluding that:37