Many of the issues and problems that have featured prominently in recent and ongoing US discussions about the future of journalism and the media have also been shaping equivalent discussions on the other side of the Atlantic. The European Court of Human Rights has traditionally been a stalwart of freedom of expression. It has, for instance, recognised that journalists and the media should enjoy an elevated level of protection of freedom of expression by virtue of the democracy-enhancing roles typically ascribed to them (eg. “public watchdog”/Fourth Estate; contribution to opinion-forming processes; provision of a forum for discussion of matters of public interest).
The trade-off for this elevated level of freedom of expression has been an expectation of adherence to journalistic ethics and codes of practice (so-called “responsible journalism”). However, in a reconfigured media ecosystem, these traditional principles require rethinking and recalibration in order to reflect the growing number and diversity of (professional and amateur) actors participating in public debate; de- (and sometimes re-)institutionalising trends in the media sector; expanding and diversifying technological capabilities and their impact on (public and interpersonal) communication practices and patterns. Who is a journalist? Who or what are the media? Who else contributes to public debate and how? What kinds of legal liability and ethical responsibility are implicated in respect of each of the different actors?
While the European Court of Human Rights has been left in the slipstream of technological change, it is now beginning to demonstrate an awareness of certain, specific features of the online environment and their relevance for enabling robust public debate. It has also cautiously extended the elevated level of freedom of expression traditionally enjoyed by journalists and the media to non-journalistic/non-media actors. This shift from an institutional/occupational approach to a functional one constitutes important recognition of the valuable contribution non-journalistic/non-media actors can make to public debate.
How can these evolving legal principles be harnessed to create an enabling environment for a version of public debate that is increasingly diversified, crowded, interactive, noisy and technology-dependent? This paper will explore the abovementioned jurisprudential developments, their underlying issues, their interplay and their implications. It will highlight and explain how the Court’s embryonic principles in this area are being translated into policy-making by the Council of Europe, with very mixed results. It will eagerly invite comparative perspectives from the US and elsewhere.
Dr. Tarlach McGonagle is a Senior Researcher and Assistant Professor at the Institute for Information Law (IViR), Faculty of Law, University of Amsterdam, the Netherlands, where he is also coordinator of the specialised Information Law Masters Programme. He is an Associate Senior Researcher of the inter-university School of Human Rights Research in the Netherlands.
His expertise spans a broad range of issues relating to international and European law and policy in three main fields: the media, information and human rights. Recurrent themes in his research include freedom of expression, the rights of persons belonging to minorities and cultural and linguistic rights.
Dr. McGonagle regularly writes expert reports for various branches of the Council of Europe, OSCE and other IGOs and NGOs and is a member of the Editorial Board of the European Audiovisual Observatory. He was also one of the independent experts involved in the drafting – at the invitation of the OSCE High Commissioner on National Minorities – of a set of international Guidelines on the use of Minority Languages in the Broadcast Media (2003). He was an invited expert speaker at the Thematic Discussion on “Racist Hate Speech” organised by the United Nations Committee on the Elimination of Racial Discrimination in 2012.
He has published widely on numerous aspects of the right to freedom of expression, international regulation of the media and new media, the rights of persons belonging to minorities, tolerance, human dignity, “hate speech” and various legal aspects of pluralism and diversity. See here for a fuller professional profile and selected publications.