Report from the Legal Assistance Project

Introduction to IFJ Activities in Defence of Journalists' Rights

The work of the IFJ in defence of journalists' rights focuses on four main areas:

Human rights and safety of journalists: protests and campaigns against violations of press freedom and journalists' rights, IFJ missions in support of journalists' organisations under threat. For more information go to: Human Rights

IFJ Safety Fund: a fund for humanitarian assistance to journalists in need, the fund is supported through donations only by journalists and their organisations. For more information go to: Safety

Media law and policy: Interventions with national governments and intergovernmental institutions (OSCE, UN, EU, Council of Europe) to defend the interests of journalists in the preparation of media law and policy.

Legal assistance project: The IFJ launched the legal assistance project with IFJ members from Bosnia-Herzegovina, Croatia and Serbia in 1998. The current project builds on the experience of the first phase of the legal assistance project and will include also journalists' organisations from Montenegro, Romania and indirectly Macedonia.

The following brief report focuses on the two main conclusions of the first phase of the legal assistance project. It will also outline main IFJ principles on media law, which may be useful to define areas for future work. The IFJ principles are built on policy documents agreed by the IFJ member unions and associations.

The Legal Assistance Project

The project set out to provide:

A legal advice service for journalists and media organisations;

A fund for the payment of legal costs of journalists and media organisations involved in legal action in the defence of the freedom to publish or to broadcast and to operate freely and without discrimination;

International assistance to local journalists' organisations and legal advice teams in commenting on drafts of media law and defence of cases.

These aims remain valid and the overall aim of the project is to improve legal conditions for journalists in countries where a basic legal framework guaranteeing media freedom is not or only partly in place and where legal standards have to be challenged in court in order to bring them into line with European standards.

The legal advice service is available, without discrimination, to all journalists and media organisations. Applications for legal assistance are made to the journalists' union or association who will assess them on the basis of the legal advice given. Lawyers involved in providing the service will also be used to research and identify key cases of violation of press freedom and harassment of journalists to be challenged in the courts.

The project is built on already existing legal work and support provided by the journalists' organisations. In Bosnia-Herzegovina, Serbia and Croatia the journalists' unions had already established a network of bona fide lawyers who provided a legal advice service to journalists. The project thus was not trying to reinvent the wheel but supported already existing networks. The project is also based on the belief that, while international legal experts have an important role to play, the best legal advice comes from lawyers familiar with the system in the country.

In the current phase of the project it is foreseen to publish a Legal Advice Report, which will explain cases and their criteria and conditions. The report will further outline key European standards in relations to the cases concerned for use in other parts of the region. The aim is to make the experience and advice coming from the countries participating in the project available to journalists' organisations and their lawyers in other parts of the region.

Conclusions of Phase One

1) Challenging restrictive laws needs public campaigns

While challenging restrictive laws in the court is a good way to create precedents, very often parliaments and governments will only consider drafting new and better laws if there is public pressure on them to do so. Therefore, campaigns by journalists' organisations are vital to raising public awareness and building the pressure for change.

Most of the media laws, especially those dealing with broadcasting have been analysed by international bodies such as the Council of Europe. Among media professionals there is widespread agreements on what kind of provisions they would like to see set in law, the problem is to get national parliaments and governments to draft and adopt them.

Therefore, in Croatia the project not only provided legal advice through the team of lawyers but also organised campaigns to change restrictive articles in the Croatian constitution and for a reform of the penal law dealing with defamation. This law has been used continuously to prosecute media organisations publishing reports critical of members of the ruling party and public officials. Efforts focused on promoting new liberal laws.

The Croatian Journalists Association (CJA) and the Trade Union of Croatian Journalists (TUCJ) believe that the public information law which was adopted in 1996 provides for certain protection of journalists. However, penal legislation remains on defamation, which makes life very difficult for journalists. A campaign was launched against the repressive laws during 1998. Using posters, T-shirts and public meetings the journalists raised awareness about the potential dangers posed to freedom of expression by the penal laws.

2) Decent Working Conditions are Essential to Free and Independent Journalism

Journalists often face the impossible situation of being expected to produce high-quality, well-researched materials without actually getting paid for the work that they do. It shows a considerable amount of contempt for journalists if international organisations and media employers refuse to take up the issue of regular payment and minimum social security for journalists.

The biggest success of the project was in the area of defence of employment rights of journalists. At the start of the project period many journalists were afraid to challenge unfair labour practices in court but because their unions were able to provide them with assistance many journalists claimed their rights of payment and fair working conditions.

Contrary to defamation cases the cases involving unfair dismissal or non-payment of fees are often more clear-cut and easier to argue in the courts. Even though these cases are fought under the labour laws their impact on media freedom and independent journalism should not be underestimated. Journalists with secure employment conditions and legal provisions that allow them to challenge unfair dismissal - often due to political pressure - are better placed to produce quality and independent journalism which in turn is essential to an open and democratic society.

Almost all of the cases taken up by the TUCJ were against publishers who failed to pay fees to freelances or salaries to their employees. Even as Croatia is developing a functioning market economy non-payment of salaries is rampant in many of the private media. Often journalists are expected to work without receiving payment. As part of creating a viable media economy in Croatia the TUCJ has continuously challenged this practice in the courts. All of the cases supported by the project were won.

In Bosnia-Herzegovina a lot of media give journalists short-term contracts but do not provide for any payments for social security. In some cases freelance journalists have no contracts at all and can be sacked at will. There have been cases of non-payment of fees in private media such as Studio 99. The project also supported this case.

As part of the project the Independent Journalists Association of Serbia, IJAS,S supported the case of the 28 journalists who were sent on forced leave in the political purge of RTS prior to the war in Bosnia in 1993. The 28 journalists had protested against the programming policy of RTS aimed at demonising Croatians and Bosnians and had refused to make programmes in support of the war. The IJAS took the case to court after the signing of the Dayton Peace Agreement claiming reinstatement or compensation for unfair dismissal.

IFJ Principles on Media Law and Practice

Constitutional Provisions: IFJ principle: These should be conform with Article XIX of the Universal Declaration on Human Rights and Article 10 of the European Convention on Human Rights

Access to Information: key principle is that access to information held by public authorities must be free, limits to access to information must be narrowly defined and must be in the public interest. There must be provisions to contest decision to withhold information.

Secrecy: general principle is to define provisions on secrecy as clearly and as narrowly as possible, there must be a legal recourse to challenge secrecy laws in the public interest;

Protection of sources: there should be recognition that protection of sources is an integral part of journalism, limits to this right must be narrowly defined and should only be used in specific circumstances.

Defamation: general principle against defamation in criminal law, burden of proof on plaintiff, no special (in fact less) protection for public persons in line with ECHR decisions;

Intolerance (hate speech): the IFJ supports initiatives within the media (self-regulation) rather than legislation, experience has shown that hate speech laws tend to be too vague are can be used to silence the press;

Privacy: general principle: less protection for public persons in line with ECHR decisions, the test must be whether publication is in the public interest to be decided on a case by case basis.

Media Ethics: the IFJ opposes legislation on ethics but favours strengthened systems of self-regulation administered by the media professionals themselves with no link to government;

Clause of Conscience: the IFJ supports a clause of conscience entitling journalists to normal severance payments if the editorial line of the media they work for changes considerably through change of ownership, editor or other factors.

Editorial Independence: safeguarding editorial staff against undue outside pressure from political or economic interest groups.

Regulation on Media Ownership: specific regulation limiting concentration of ownership and media monopolies is needed, defined through market shares, regulation against cross-ownership.

Working conditions: Labour law allowing for collective bargaining must apply also to journalists. There cannot be any exceptions to journalists' right to organise (for instance defining journalists as state employees without the right to strike). Journalists just like other workers must be entitled to union representation in the enterprise and there should be systems to allow for consultation of workers (works councils).