By Dirk Voorhoof *
Recently, the Council of Europe Task Force for Freedom of Expression and Media published a book under the title “Journalism at risk. Threats, challenges and perspectives”. Since a Grand Chamber judgment of the European Court of Human Rights of 20 October 2015, a new threat for journalistic freedom has obviously emerged, that is the risk for journalists to be detained, prosecuted and convicted for disobeying a police order while covering a public demonstration. At least, that is the consequence of the judgment in the case of Pentikäinen v. Finland.
The Grand Chamber concludes that the interference with a press photographer’s right to freedom of expression and newsgathering because of disobeying a police order to leave the scene of a demonstration that had turned into a riot, can be said to have been “necessary in a democratic society” within the meaning of Article 10 of the Convention. At an earlier stage in this procedure the Chamber of the fourth section, with five votes to two, had come to the same conclusion (see our blogs in March 2014, here and here).
No longer a right of journalists to observe public demonstrations?
The judgment of the Grand Chamber in the case of Pentikäinen v. Finland has provoked the reaction that this is:
“(..) a missed opportunity for the Court to reinforce, in line with its consistent case-law, the special nature and importance of the press in providing transparency and accountability for the exercise of governmental power by upholding the rights of journalists to observe public demonstrations or other Article 11 activities effectively and unimpeded, so long as they do not take a direct and active part in hostilities. Recent events in many European countries demonstrate, more than ever, the necessity of safeguarding the fundamental role of the press in obtaining and disseminating to the public information on all aspects of governmental activity. That is, after all, one of the crucial elements of the democratic ideal protected by the European Convention on Human Rights”.
This is not a quote from an NGO advocating for freedom of expression, nor a statement from a press release by the International or European Federation of Journalists (IFJ/EFJ). It is the final conclusion by four judges of the Grand Chamber of the European Court itself, vehemently dissenting with the majority. The four judges firmly protesting against the approach and findings by the Grand Chamber’s majority are Spielmann, the president of the Court, and the Belgian, Iceland and Russian judges (Lemmens, Spano and Dedov).
It looks though as the majority of the Grand Chamber is aware of the awkward consequences this judgment may entail with regard to the public watchdog role of media and journalists. Indeed, after its finding of no violation of the press photographer’s rights in this case, it stresses that
“this conclusion must be seen on the basis of the particular circumstances of the instant case, due regard being had to the need to avoid any impairment of the media’s “watch-dog” role” (§ 114).
Once more, the Grand Chamber delivers a judgment of a non-finding of a violation of Article 10 ECHR dealing with a crucial matter of freedom of expression, media freedom and rights of journalists, while at the same time it attempts to minimize the consequences of its (controversial) decision by emphasizing the particular circumstances of the instant case or by trying to reduce its impact as a kind of “damage control” (see also Inforrm’s Blog and our blog recently on Delfi SA v. Estonia). In a first reaction on the judgment, Peter Noorlander, chief executive officer of Media Legal Defence Initiative (MLDI), questioned this approach by the Grand Chamber:
“What is the point of the Grand Chamber accepting these cases for referral if they then only decide them narrowly and on the facts? It’s a waste of everyone’s time, their own included, and they are not helping settle any “serious question[s] affecting the interpretation or application of the Convention or the Protocols thereto, or serious issue[s] of general importance” (as per their mandate under Articles 31 and 43 of the Convention)”.
Let’s go back to the facts, as they are particularly crucial in this case, legitimizing the measures taken against Pentikäinen.
Facts, chamber judgment and referral
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, and to conduct an extensive report on the demonstration for the paper version of the magazine and also to publish it online immediately, once the demonstration had ended.
At a certain moment, the police decided to interrupt the demonstration, which had turned violent, and to seal off the demonstration area. It was announced over loudspeakers that the demonstration was stopped and that the crowd should leave the scene. The police continued to order the crowd to disperse, stating that any person who did not leave would be apprehended. Hundreds of people then left voluntarily via several exit routes established by the police. When leaving, they were asked to show their identity cards and their belongings were checked. At a certain moment, a police officer told Pentikäinen personally that he had one last chance to leave the scene. Pentikäinen told the police officer that he was reporting for Suomen Kuvalehti and that he was going to follow the event to its end.
After the situation inside the cordon had already been peaceful for an hour with around only 20 demonstrators left, the police apprehended the protesters that had not left the scene yet, including Pentikäinen. He told the apprehending officer that he was a journalist and he presented his press card, which the police officer later confirmed. Also at the police station, the police was aware that Pentikäinen was a member of the press. 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.
The chamber of the fourth section of the European Court of Human Rights found that there had been no violation of Article 10. On request by Pentikäinen, supported by the Finnish Union of Journalists, the case was referred to the Grand Chamber in accordance with Article 43 of the Convention, implying that the case concerned a serious question affecting the interpretation of Article 10 of the Convention and/or a serious issue of general importance.
The Grand Chamber’s judgment
The Finnish Government primarily claimed that there had been no interference at all with Pentikäinen’s right to freedom of expression, as he was simply arrested, detained, prosecuted and convicted for disobeying a police order, without this having any impact on his functioning as a journalist and without being prevented from covering the event. On this point the Grand Chamber disagrees and it finds that the action taken by the police and the measures by the Finnish judicial authorities are to be considered as interferences in the journalist’s right to freedom of expression and information:
“Even if the impugned measures were not aimed at the applicant as a journalist but were the consequence of his failure to comply with police orders to disperse, addressed to all those present in the cordoned-off area, his exercise of his journalistic functions had been adversely affected as he was present at the scene as a newspaper photographer in order to report on the events. The Court therefore accepts that there was an interference with his right to freedom of expression” (§ 83).
Apart from the acceptance that the impugned measures were prescribed by law, the Grand Chamber also considers them necessary in a democratic society, as pertinently and sufficiently motivated by the Finnish authorities. In general terms, the Court is of the opinion that
“a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions” (§ 91),
and it emphasizes that
“the present case does not concern the prohibition of a publication (public disclosure of certain information) or any sanctions imposed in respect of a publication. What is at stake in the present case are measures taken against a journalist who failed to comply with police orders while taking photos in order to report on a demonstration that had turned violent” (§ 93).
The Grand Chamber also revokes the argument of the Finnish Government, pointing out that
“the fact that the applicant was a journalist did not entitle him to preferential or different treatment in comparison to the other people left at the scene” (§ 109).
The judgment refers to the obligation of journalist to behave in a “responsible” way, which includes obeying lawful orders by the police:
“Against the background of this conflict of interests, it has to be emphasised that the concept of responsible journalism requires that whenever a journalist – as well as his or her employer – has to make a choice between the two duties and if he or she makes this choice to the detriment of the duty to abide by ordinary criminal law, such journalist has to be aware that he or she assumes the risk of being subject to legal sanctions, including those of a criminal character, by not obeying the lawful orders of, inter alia, the police” (§ 110)
The Grand Chamber agrees with the Finnish authorities that the impugned measures taken against Pentikäinen were necessary and proportionate for the protection of public safety and the prevention of disorder and crime. That includes not only his apprehension, but also the nearly 18-hours detention, the prosecution and finally the criminal conviction for having disobeyed the police. The majority of the Grand Chamber, by thirteen votes to four, comes to the conclusion that there has been no violation of Article 10 of the Convention, referring in its overall conclusion to the margin of appreciation that is to be left to the Finnish authorities and recalling that it
“ (..) clearly transpires from the case file that the authorities did not deliberately prevent or hinder the media from covering the demonstration in an attempt to conceal from the public gaze the actions of the police with respect to the demonstration in general or to individual protesters (..). Indeed, the applicant was not prevented from carrying out his work as a journalist either during or after the demonstration” (§ 114).
The approach that a journalist is not entitled to obtain “a preferential or different treatment in comparison to the people left at the scene” (§ 109) obviously neglects the difference between the journalist executing his task as member of the press playing its public watchdog role and the demonstrators being responsible for the events turning into a riot. Such finding by the Court is also in contrast with the principle it emphasized earlier that
“the crucial role of the media in providing information on the authorities’ handling of public demonstrations and the containment of disorder must be underlined. The “watch-dog” role of the media assumes particular importance in such contexts since their presence is a guarantee that the authorities can be held to account for their conduct vis-à-vis the demonstrators and the public at large when it comes to the policing of large gatherings, including the methods used to control or disperse protesters or to preserve public order” (§ 89).
Furthermore, it can be argued that the fact that Pentikäinen was eventually not readily identifiable as a journalist prior to apprehension, is irrelevant with regard to the question whether his detention, prosecution and conviction was necessary in a democratic society for the protection of public safety and the prevention of disorder or crime. There is no discussion that Pentikäinen had immediately presented his press card to the apprehending police officer and also the police officers who decided to hold Pentikäinen in detention were fully aware of the fact that he was a journalist. The decision to prosecute Pentikäinen for disobeying the police order to disperse from the demonstration was made in full knowledge of the journalistic capacity and activity of Pentikäinen on the evening of the demonstration at issue. It is somewhat grotesque in this regard that the Grand Chamber’s majority expresses the opinion that “the police authorities displayed a rather favourable attitude towards the applicant as a representative of the media” (§ 103) .
The crucial question remains how Pentikäinen’s detention, prosecution in criminal court and final conviction could be held necessary for the protection of public safety and the prevention of disorder and crime, bearing in mind that no allegation was made that he posed a threat to public order on account of violent behaviour or was taking any active part in the demonstration. It is also remarkable in this perspective that the majority of the Court casts doubts whether Pentikäinen has acted in accordance with “responsible journalism”, simply for denying a police order to leave the scene of a demonstration that he was covering as a journalist and supposed subsequently to report on.
This also brings us to another question, pointedly formulated by the dissenters:
“(W)hat pressing social need justified detaining the applicant for seventeen and a half hours and seizing his professional equipment – thus depriving him of the opportunity of reporting on the event as it unfolded – and then prosecuting and convicting him, for an act deemed by the domestic courts to be “excusable” under Finnish law owing to his journalistic status?”
Finally we consider that the Grand Chamber’s estimation on the proportionality, namely that the impugned measures against Pentikäinen “could hardly, if at all, have any “chilling effect” on persons taking part in protest actions” (§ 113), clearly risks to underestimate the overall impact of such interference, although finally no sanction was imposed. This part of the judgment is unconvincing, or even “very simplistic” as the dissenters formulate it. Indeed, the detention, and especially the prosecution in criminal court and the criminal conviction can have a significant deterrent effect on journalistic activity in similar situations occurring regularly all over Europe. As has been stated earlier by the press photographer himself: “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?’”
* 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. He is the author of a recently published e-book on the case-law of the European Court of Human Rights on freedom of expression, media and journalism, and he co-authored the book “Journalism at risk”.