Media freedom in the EU Member States: Seminar in the European
Parliament in cooperation with the Association of European Journalists as
part of the AEJ’s 50th anniversary celebration, May 8 2012

Remarks by William Horsley, AEJ Media Freedom Representative
WILLIAM HORSLEY, AEJ Media freedom Representative: The AEJ much appreciates the European
Parliament’s hospitality & openness. As you know the AEJ is fifty years old this year, that’s a bit older
than the directly-elected European Parliament, so let me assure you: it is true that life begins at fifty!

Our Association is active in more than 20 European countries, in the EU and beyond, and our
sections share a common concern to ensure the future of a journalism that serves the public interest
and can act as a public watchdog. We are glad to have the opportunity to engage with Commissioner
Neelie Kroes and prominent MEPs, and hope that this will be a constructive dialogue between the
EU institutions and member states, and stakeholders and concerned parties including ourselves, the
European Federation of Journalists and others.

I took part a year ago in a gathering here in Brussels when two Commissioners, Neelie Kroes and
Stefan Fuehle invited 400 journalists from Southeast Europe and Turkey to voice their concerns
about constraints on press freedom. The Commissioners faced a barrage of criticism from those
journalists in would-be EU member states. The EU talks of itself proudly as a “rules-based system”,
and the journalists said they had looked to the Union as an authority to constrain abuses and
improper pressures coming largely from their own governments, but many said they felt bitterly let
down. The Commission made clear then – and Neelie Kroes repeated today -- that while the
protection of press freedom is one of the criteria for countries wishing to enter the EU, it believes it
has very limited competence in that field towards countries once they become members.

That has prompted some in the European parliament to warn that the EU has opened itself up to the
charge of “double standards”. And that is really our theme today: “Mind the gap!” – the gap
between the EU’s claims and what it actually does in this vitally important area.

There can no longer be any doubt that the EU, as a body which now has “legal personality”,
exercises real governmental powers: it enacts laws that are binding on 27 states and disburses large
amount of structural and other funds. It must be fully integrated into Europe’s framework for
protecting press freedom. “no competence” is no answer to very real problems posed by issues,
including the dangers of political bias and attempts to prescribe the nature of media contents in
Hungary’s media laws.

Today I want to present our reasons for dissatisfaction with the present situation, citing some of
the recent problems noted by AEJ colleagues around Europe; then I’ll set out some proposals for
how the EU could set up its own mechanisms for protecting legitimate press freedom when it is
under attack from bad laws and political interference. The key point is that in the majority of cases
when journalists and editors complain about attacks on press freedom, the culprit is in fact the
government of the country concerned – including public officials, prosecutors and police.

So we are not calling for new regulations for the press. We want a framework to ensure that
governments themselves, and the law-enforcement agencies, stay within the law – and so do not
stifle free and inquiring journalism. It’s about enabling free and inquiring media, not dictating to
them. Above all, the governments of the EU – and the Union itself -- must live up to the binding legal
commitments that already exist – in the form of international treaties , from the International

Covenant on Civil and Political Rights, which gives legal expression to the Universal Declaration on
Human Rights, to the EU’s Lisbon Treaty of 2009.

1) Point One: European Press Freedom in decline. Many detailed reports have been issued before
this year’s World Press Freedom Day on 3 May, last week, by press freedom monitoring bodies;
including the Committee to Protect Journalists (Jean-Paul Marthoz beside me will be speaking later
today). They show that the trend of recent years towards a steady erosion and retreat of press
freedom is continuing, in Europe and elsewhere. So the AEJ cannot agree with EU politicians who
claim that despite some problems press freedom is mostly flourishing in Europe. Journalists
themselves paint a darker picture.

Across Europe journalists have faced criminal investigation and the risk of prosecution under anti-
terrorism and state secrecy laws that make it harder for them to scrutinise the actions of
governments. The same holds true of the EU’s data retention rules and the creeping demands for
more government access to that date: journalists are among the groups that suffer most from such
surveillance, which is sometimes conducted illegally. Criminal libel is still on the statute books in all
but a handful of EU member states – and shouldn’t be.

The Democracy Index 2011 of the Economist Intelligence Unit finds that a worldwide decline in
democracy in the past year was concentrated in Europe, and was mirrored by a retreat of press
freedom, especially in France, Italy and Turkey.

2) What can be expected of the media and journalists themselves?

These issues touch directly on the future of the media as well as the functioning of an open
democracy, so journalists’ organisations and media owners must engage with this debate, and not
act as though it is nothing to do with them. It certainly is.

Everywhere where democracy is alive, political power and press are doomed to be tied together, like
the odd couple -- Pozzo and Lucky -- in Samuel Beckett’s “Waiting for Godot”.

As we now see in the UK, with the Leveson Inquiry into press standards and the relationship of the
press with the police and politics, both sides of this odd couple arrangement are down in the dirt,
having their failures exposed to public view.

Yet there is hope that the Inquiry can serve a positive purpose, resulting in a system of effective self-
regulation by the media of the media. It’s important that all influential media players take part, that
governments stay well out of any role in regulating media or media content directly, and that the
system is based on an Editor’s Code which, as now, recognises the paramount importance of the
public interest and the principle that there is indeed a public interest in protecting freedom of
expression itself.

The Inquiry is producing interesting ideas for such a framework, including the idea that owners
would agree to be bound by a contract with the new press complaints body, including a so-called
“conscience clause” for journalists to protect them from undue pressure from owners to behave in
unprofessional ways. There should also be fair and clear rules on things like the right of reply and
corrections, but the key point is that the press must be enabled to play its role as a public watchdog
without interference from any powerful group.

And all sides should be aware that the rise of mobile, multi-media and Internet technologies
threaten the very survival of what’s been called “professionally-edited, fact-based journalism” – that
is, journalism in the public interest.

3) The EU’s denial of competence in this area

The Lisbon Treaty laid the foundation for the EU to exercise authority in the field of justice and
protection of fundamental rights. Legal experts said that EU treaties would have to be changed for
the European Union to do that, and for it to accede to the Convention in its own right. That has
happened; and the treaty asserts that the Charter of Fundamental Rights is a legally binding part of
the treaty.

But the wording used in the Lisbon treaty is contradictory – it seems to be a nonsense, in fact. Article
6 spells out the principles, of democracy and human rights, on which the EU is based. And it says
that “the Union shall provide itself with the means necessary to achieve its objectives”. But then the
same article explicitly states that the Charter “shall not extend the EU’s competences in the area”.

And here’s another absurdity: Article 7 of the Treaty on European Union says that sanctions can be
imposed on a member state which is found “in serious and persistent breach of common values”:
the voting rights of the offending state can be suspended, provided, among other things, that the
other states all decide unanimously that such a breach has occurred, But officials describe that as a
“sledgehammer”, or a “nuclear option” which the Commission is reluctant to bring into play.

The nonsense here is that the treaty does provide for ways in which a state’s behaviour can trigger a
procedure to determine whether action should be taken against it, but the specific competence in
fundamental freedoms is denied, and the procedure is politically impractical. This looks like an

4) So we say: “No Competence” is No answer

What is surely needed is for the EU, having recognised the gravity of the threat to press freedom
within the EU, to develop the procedures needed so that serious problems – such as those raised by
Hungary’s media laws -- can be identified and raised with the state concerned, without resort to the
ultimate sanction of suspending its voting rights.

After all, the Commission and European Union government have down the years massively extended
the areas of “competence” of the Union – even as far as areas traditionally reserved for sovereign
nation-states, such as border controls, citizenship, and even criminal justice, through the European
Arrest Warrant.

Why, then, has no action been taken to protect press freedom and freedom of expression? Is it not
because national governments and public officials are the usually the main culprits in violations of
press freedom? Member states are not keen to accept any outside authority that constrains their
power in such a sensitive area. This looks suspiciously like another case of the EU having “double
standards”. The Commission should not be giving them cover to do so.

Regrettably, the AEJ has witnessed a similar debate in the Council of Europe, and the record is not
encouraging. There, the representatives of EU states, as well as others have until now resisted and
obstructed a number of well-argued proposals for establishing an effective system of monitoring
clear and serious violations of Article 10 of the Convention, (which commits all member countries to
safeguarding freedom of expression and media freedom).

A quick glance back: In 2009, on behalf of the AEJ, I compiled the “Respect for Media Freedom”
report for the Parliamentary Assembly of the Council of Europe (PACE). That report helped to inform
the ensuing Resolution in which the Assembly requested the Council of Europe ministers to agree to
the setting up of a proper system for monitoring and following-up on abuses in this area. What
happened? The Ministers formally approved a watered-down version of the proposal, which should
have involved closer scrutiny of serious threats to the lives and work of journalists, including physical
attacks, harassment and false imprisonment.

But more than two years later the Council of Europe countries and the Council of Europe machinery
have put the decision of January 2010 into action. There can be only one explanation for that – the
lack of political will by governments to see any form of close scrutiny of their country’s affairs in this
sensitive area.

Again this year I am writing a report for the Assembly on The State of Media Freedom in Europe,
using a variety of sources including first-hand reports from AEJ members in many Sections. And the
parliamentarians what their next move on this will be.

What’s clear is that the weakening of free and inquiring journalism within some EU states, as well as
beyond, already makes it more likely that elections and other democratic political processes will be
distorted, and that corruption and other abuses of power will go unreported.

Here are just a few of the problems that have recently been flagged up by AEJ Sections:-

Bulgaria: Journalists in Bulgaria report that paid-for articles – in effect, political advertisements for
candidates in elections – often appeared in newspapers as normal news reports. They want to see
action on the OSCE’s call for a proper public register of ownership of broadcast media to end the
current murky state of affairs which makes a mockery of rules on concentration of media ownership.

Spain: In Spain, too, colleagues report that quality journalism is being stifled by the politicisation of
media and of the contents of media reports, because owners simply use their outlets to promote
their own political or business interests. Journalists say they need help from outside – it should, we
think, come from the EU – to put a stop to the growing trend for political parties and others to hold
press events at which no questions at all are allowed; in some cases the journalists have no option
but to receive prepared video material, with no chance to do their own filming and reporting. And in
the recent past Spain has lost as many as 10,000 journalists.

France: in one of a series of such cases, the French secret services compelled a telecoms providers to
hand over the phone records of a Le Monde journalist (Gerard Davet) after he publicised
incriminating documents about the Bettencourt affair, involving alleged illegal political
contributions. A French court eventually ruled that the authorities had acted improperly in that case,
but it’s part of a pattern of intrusions into the free workings of the press, including attempts to force
journalists to reveal their sources, or to spy on them for that purpose.

Even in the Netherlands, three years ago at the AEJ’s Congress in Maastricht, the editor of De
Telegraaf (Sjuul Paradis) accused his government of “trying to intimidate us to keep us quiet”, after it
was revealed that the security services had bugged his phone and those of two of his journalists to
find the source of a leak about a failure of the intelligence services. Two journalists were actually
arrested, and it turned out that the authorities were trying to cover up their own mistakes.

In Austria, a colleague points out that two “profil” magazine journalists were called as criminal
suspects before Austrian prosecutors after German Justice authorities indicted them for breaking a

German law against quoting from official documents in a judicial process – something that is not a
crime in Austria. The magazine asserts that the public has a right to be informed about the case,
which concerns allegations of fraud at a bank that was bailed out with public funds in the financial
crisis. The case in Germany is dragging on after two years, and could result in jail terms for the

The editor of the German magazine“Der Spiegel”, (Georg Mascolo), wrote that the case could stifle
investigative journalism.

Public Service Broadcasting: And the Mediadem European research project, which is funded by the
EU, says that in many parts of central and eastern Europe politicians treat public service television as
their “personal property”. Political interference has become endemic in some EU states through
party influence on the most important media – television.

So are there any grounds for hope? Yes - if the EU has the courage to act in line with the values it

First, journalists in EU states have probably the strongest protection in law of any region in the
world. EU member states are bound by the European Convention on Human Rights, and as parties to
the Convention they are bound to observe the judgements of the European Court of Human Rights
in Strasbourg, which accords special protections to journalists.

The Court has stated that Freedom of Expression is an “essential foundation” of democratic society
and the media have a vital function as “public watchdog” by virtue of their role imparting
information and ideas of public interest. So any restrictions to freedom of the press have to be
justifiable in pursuit of very limited number of other things needed for a democratic society, and the
reasons must be compelling and narrowly interpreted.

The case law of the court is a major pillar of international human rights law. It has ruled in favour of
journalists or media organisations in landmark cases on key issues such as the right to disclose
materials of public interest which states wish to keep secret, their right on the same grounds to
publish without prior notification being given to the parties being written about, and the right not to
disclose their sources of information. It also provides an important protection against defamation
actions -- that public figures must endure a higher level of criticism than others because of their

Secondly, the EU’s own initiatives could be part of a solution. The so-called High-Level Group on
Media Freedom and Pluralism was told to start from the principle that the protection of journalists’
rights and freedoms are key elements for enabling exercise right of freedom of express, enshrined in
Article 11 of the EU’s Charter of Fundamental Rights. And its members are to consider “whether
additional steps need be taken, and if so by whom, to ensure the effective protection and promotion
of these fundamental rights, through a wide debate with MPs, member states, media and civil

Separately, the newly-formed Centre for Media Pluralism and Media Freedom is to produce policy
advice for the European Commission later this year on the scope for the EU to exert “competences”
in this area. The dangers from political interference in the media are identified as one of the
problems to be addressed.

AEJ Proposals for consideration:

Here is what the AEJ proposes:-

1) First, the Fundamental Rights Agency (FRA), which monitors member states and issues warnings
to counter evidence of racism and xenophobia, as well as violations of data protection rules, could
be mandated to do similar work on issues of press freedom, basing its work on the ample case law of
the Strasbourg court and the European Convention, which the EU has committed itself to acceding
to as soon as possible.

The FRA (or another qualified body) would have to be mandated to monitor and receive claims from
journalists and others who feel their freedom of expression rights have been unduly restricted.

This would not involve any EU Directives or laws, but could provide the information to allow the EU
to play its part in ensuring that its own laws and actions, as well as those of the member states, are
in line with the Convention.

2) EU member states should make a public commitment before the Union accedes to the European
Convention on Human Rights.

The commitment should be to follow the best practices and maintaining the highest standards of
press freedom and freedom of information, in accordance with the norms of international law and
the European Convention.

This could be a convincing response to the challenge that has been posed by Hungary, which has
sought to reject some of the EU’s demands concerning its laws and practices on fundamental rights
by saying that they are based on assessments made by the Council of Europe, not the EU itself.

The EU must surely not be seen to lag behind the Council of Europe in matters of fundamental rights
– especially press freedom.

A special opportunity exists for all 27 EU states (soon to be 28, with the accession of Croatia) to
declare their full support for the Austrian initiative presented last year to Council of Europe
ministers, to advance the concept of “positive obligations” on member States under Article 10 of
the Convention to protect journalists and prevent impunity (persistent failure to prosecute and
convict those responsible for serious attacks or abuses).

The Court has said that “genuine effective exercise of certain freedoms does not depend merely on
the State’s duty not to interfere, but may require positive measures of protection” -- recalling the
key importance of freedom of expression as one of preconditions for a functioning democracy.

The Council of Europe’s Committee of Ministers held special “thematic debates” on this issue three
times between December 2011 and March this year, reflecting its urgency and importance in the
light of acute assaults on press freedom in Europe.

The outcome – a commitment to strengthen the “impact and visibility” of Council of Europe
activities in this field and to develop a “toolkit of assistance measures” for member states “upon
request” falls far short of the determined action needed, in the AEJ’s view.

3) The EU should adopt a public strategy of active support for current initiatives for press freedom
and journalists’ protection in wider inter-governmental organisations, especially the Council of
Europe, the OSCE and the UN – in line with the Council of Europe Ministers’ Decision on “Media
freedom” of 18 January this year.

The strategy may include a public statement of endorsement for the UN Action Plan on the Safety of
Journalists and the Issue of Impunity, which was drawn up under the lead of UNESCO, the UN agency
for freedom of expression and must now be fleshed out in a Work Plan and implemented through
the work of all relevant UN agencies, both as a policy priority and in country missions in many
countries where journalists face constant intimidation and harassment.

The AEJ has helped in producing the OSCE’s newly-published Safety of Journalists Guidebook, a
guide for governments to best practice in terms of protecting journalists’ safety and legitimate and
the obligations of states under OSCE commitments and international law. That Guidebook has been
commended by the office of the OSCE’s Representative on Media Freedom to all the governments of
the Council of Europe. It can be a reference document especially for the European Union as it
determines its next steps towards a credible and effective policy for upholding press freedom.

In conclusion: The question of press freedom goes to the heart of the identity and the legitimacy of
the EU. In order to be stronger democratically, the EU and its member states need to enable and
encourage proper scrutiny of their actions by a free and independent media.

Freedom of the press is still “the mother of all freedoms”. The time has come for the EU to close the
gap between its claims as an area committed to press freedom and its sorry lack of instruments and
actions to back up those claims.


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