March 24, 2014
This guest post was written by Dirk Voorhoof*.
In the case of Pentikäinen v. Finland the European Court found that a Finnish press photographer’s conviction for disobeying the police while covering a demonstration did not breach his freedom of expression. Both the International Federation of Journalists (IFJ) and the International Press Institute (IPI) have criticised the interference with the journalist’s rights and the IPI has expressed its disappointment with the judgment by the European Court for not sufficiently respecting the rights of journalists and the media to cover what is happening during public demonstrations, especially when they end up with a clash between the demonstrators and the police. The Court is not unanimous in its judgment: in a robust dissenting opinion, two judges argue that the measures against the journalist unnecessarily interfered with the right of newsgathering, protected under Article 10 ECHR.
The facts and domestic proceedings
The applicant, Markus Pentikäinen, is a photographer and journalist for the weekly magazine Suomen Kuvalehti. He was sent by his employer to take photographs of a large demonstration against the Asia-Europe meeting in Helsinki, September 2006. At a certain moment the police decided to interrupt the demonstration which had turned violent. It was announced over loudspeakers that the demonstration was stopped and that the crowd should leave the scene. After further escalation of violence, the police considered that the event had turned into a riot and decided to seal off the demonstration area. When leaving, the demonstrators were asked to show ID and their belongings were checked. However, a core group of around 20 people remained in the demonstration area, including Markus Pentikäinen, who assumed the order to leave the area only applied to the demonstrators and not to him, doing his work as a journalist. He also tried to make clear to the police that he was a representative of the media, referring to his press badge. A short time later the police arrested the demonstrators, including Pentikäinen. He was detained for about 18 hours and later the public prosecutor brought charges against him. The Finnish courts found the journalist guilty of disobeying the police, but they did not impose any penalty on him, holding that his offence was excusable.
In Strasbourg, Pentikäinen complained that his rights under Article 10 (freedom of expression and information) had been violated by his arrest and conviction, as he had been prevented from doing his job as a journalist. The European Court recognised that Pentikäinen, as a newspaper photographer and journalist, had been confronted with an interference in his right to freedom of expression. However, as the interference was prescribed by law, pursued several legitimate aims (the protection of public safety and the prevention of disorder and crime) and was to be considered necessary in a democratic society, there was no violation of his right under Article 10 of the Convention.
The European Court especially referred to the fact that Pentikäinen had not been prevented from taking photos of the demonstration, and that no equipment or photos had been confiscated. There was no doubt that the demonstration had been a matter of legitimate public interest, justifying the media reporting on it, and Pentikäinen was not prevented from doing so. His arrest was a consequence of his decision to ignore the police orders to leave the area, while there was also a separate secure area which had been reserved for the press. It was also doubtful whether Pentikäinen had made it sufficiently clear to the police when being arrested that he was a journalist. Furthermore, although Pentikäinen was found guilty of disobeying the police, no penalty had been imposed on him and no entry of his conviction had been made in his criminal record.
The Court also considered that the fact that the applicant was a journalist did not give him a greater right to stay at the scene than the other people and that the conduct sanctioned by the criminal conviction was not his journalistic activity as such, but his refusal to comply with a police order at the very end of the demonstration, when the latter was judged by the police to have become a riot.
“47. The Court further considers that the applicant was not as such prevented from exercising his freedom of expression and reporting the event. Moreover, he was offered the alternative to follow the demonstration from the secured area reserved to the press. His arrest and conviction only related to disobeying the police as he failed to obey their orders. As the Government pointed out, the fact that the applicant was a journalist did not give him a greater right to stay at the scene than the other people.
48. Moreover, the Court notes that the applicant was held in detention for about 18 hours. As the Government maintained, the length of the detention is mainly explained by the fact that the applicant was detained late at night and that the domestic law prohibited interrogations between 10 p.m. and 7 a.m. In addition, the Court notes that altogether 121 persons were arrested and detained due to the demonstration and that this fact may also have delayed the applicant’s release. However, the next day the applicant was one of the first to be released due to his status as a journalist.
49. Taking into account the considerations outlined above, the Court finds that, in any event, any interference with the applicant’s exercise of his journalistic freedom was only of limited extent, given the opportunities made available to him to cover the event adequately. The conduct sanctioned by the criminal conviction was not his journalistic activity as such, but his refusal to comply with a police order at the very end of the demonstration, when the latter was judged by the police to have become a riot”.
With regard to the necessity of the interferences with Pentikäinen’s right, the Court observes:
“52. (..) that the domestic courts found it established that the applicant had understood that the police orders to disperse also concerned him and that he had failed to obey these orders. The District Court found, by referring to Article 10 of the Convention, that the police orders interfered with the applicant’s right to exercise his freedom of expression but that interference was prescribed by law and pursued a legitimate aim. As to the necessity, the court found that it had been necessary to disperse the crowd because of the riot and the threat to the public safety, and to order people to leave. Thus the restrictions on the applicant’s freedom of expression were justified.
53. The Court notes that the District Court analysed the matter from the Article 10 point of view. In this analysis the court balanced the applicant’s freedom of expression against the State’s interests and found that there had been a pressing social need to take the impugned measures against the applicant”.
Therefore the Court concludes that:
“57. (..) the reasons relied on by the domestic courts were relevant and sufficient for the purposes of Article 10 of the Convention. Having regard to all the foregoing factors and taking into account the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests at stake. In sum, the Court concludes that the domestic courts were entitled to decide that the interference complained of was “necessary in a democratic society”.
By five votes to two the Court found that the Finnish courts had struck a fair balance between the competing interests at stake and accordingly came to the conclusion that there had been no violation of Article 10.
According to the separate dissenting opinion of two judges, George Nicolaou (Cyprus) and Vincent A. de Gaetano (Malta), it has not been substantiated why it was necessary in a democratic society to equate a professional journalist, operating within recognised professional limits in covering the demonstration, with any of the people taking part in the demonstration and to impose drastic criminal restraints on him. The dissenting judges criticise sharply the imposition of restrictions on the journalist’s freedom of expression through his arrest, detention, prosecution and conviction for a criminal offence simply because he had the courage to do his duty in furtherance of the public interest.
The dissenters emphasise that:
“the applicant was first required to obey the police order and then, when he failed to do so, he had to be arrested and kept in detention for seventeen and a half hours. It is to be noted that the domestic court never said that the arrest and detention were wrong or unnecessary. Subsequently, the applicant had to be prosecuted and to stand trial, and to be convicted of a criminal offence. In the domestic court’s view, all of that had been right and proper and well deserved, but on the other hand, the applicant would suffer no further consequences because the offence was excusable. The majority are content with that conclusion”.
The dissenting judges clarify why they are not content with the arguments of the Finnish authorities, referring especially to the journalistic interest that has been neglected. They argue:
“Where a demonstration is peaceful, the journalist’s function is essentially one of collecting and transmitting information and, quite often, adding comment. But when tension builds up and violence breaks out, whereupon the authorities resort to suppressive control measures, the journalist assumes the role of “public watchdog” and his task then acquires even greater significance (..). He is entitled to be in the very thick of things until the very end, and sometimes does so at considerable risk to himself. The reason is because in a democratic society the public have the right to know what happens during such difficult times. This right forms one of the basic safeguards of democracy. Hardly a day passes by when we are not made aware, in one way or another, of the need for journalistic freedom to perform that kind of role. The domestic court’s view that the applicant was inevitably faced with a dilemma as to where his loyalty lay, and that this dilemma could only be resolved by giving precedence to the law, quite misses the point. It does not, in my respectful view, reflect the true nature of the situation in which the applicant found himself. He was not one of the demonstrators. He was a journalist-photographer covering what the Government themselves have described as an event of considerable public importance”.
According to the dissenting judges the case reveals a one-sided attitude on the part of the Finnish authorities, one likely to create a “chilling effect” on press freedom.
The discussion within the Fourth Section of the European Court, reflected in the contrasting viewpoints of the five judges of the majority and in the dissenting opinion of two judges, indicates that very different standards of evaluation are applied with regard to the justifications for interferences with a journalist’s right to freedom of expression under of Article 10 of the Convention. The majority position is especially characterised by the acceptance of a (broad) margin of appreciation that is left to the Finnish authorities in justifying the interference at issue with the journalist’s freedom of expression and right of newsgathering. In particular, the approach by the majority that “the fact that the applicant was a journalist did not give him a greater right to stay at the scene than the other people”, can be seen as not sufficiently taking into account the interests related to the right of newsgathering by journalists, in the circumstances of the case at issue. Also in terms of proportionality one can observe that the majority is not strictly scrutinising this crucial aspect of the interference, by emphasising that the journalist was finally not sanctioned and no entry of his conviction had been made in his criminal record. Rather the fact that the journalist was detained in prison for about 18 hours, that he was prosecuted for having committed a criminal offence, that he had to stand in court and that he was finally convicted, although without imposing any penalty on him, can be considered as an interference that risks to have a chilling effect on journalistic practices, especially for journalists covering the operations and procedures of police and similar authorities during riots, demonstrations or protest actions by activists, NGO’s or civil society organisations. As Pentikäinen has explained: “If a working journalist always has to be afraid of getting arrested and facing criminal charges in long court processes, it will have a great impact on the decisions we have to make in the field, such as: ‘To stay or not to stay?’ ”
IPI’s Finnish National Committee said in a statement that it considered the ruling “baffling from the point of view of freedom of expression”. Noting that Pentikäinen’s arrest prevented him from reporting on the alleged use of excessive force against demonstrators, the Committee criticised the police for ignoring “the fact that there were people [present] with differing status as to the freedom of speech”. The Committee also explained: “Photographer Pentikäinen was identifiable as a representative of the press. Legitimate demands of real time communication collided with the demands of the police. People have the right to know about the actions of authorities against citizens, and the press has the responsibility to report it. In the worst case, the ECHR’s ruling may severely restrict the freedom of the media to report on demonstrations.”
Markus Pentikäinen has announced in a statement to IPI that he will request the Court for a referral to the Grand Chamber in application of Article 43 of the Convention.
“UPDATE: The case was referred to the Grand Chamber on the 2nd of June 2014”
P.S. – Apart from the case Pentikäinen v. Finland the recent case law of the ECtHR in relation to media, journalism and freedom of expression will be presented, analysed and discussed at a conference on freedom of expression, organized by the University of Helsinki, 8-9 May 2014. See here and also here.
* Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is also a Member of the Flemish Regulator for the Media and of the Human Rights Centre at Ghent University. See also Freedom of Expression, the Media and Journalists : Case Law of the European Court of Human Rights, an e-book recently published by the European Audiovisual Observatory (Strasbourg).