Report No. 200

The Basic Principle:

(1) Freedom of expression (as defined in Article 19 of the Covenant), including the freedom of the media - constitutes one of the essential foundations of every society which claims to be democratic. It is the function and right of the media to gather and convey information to the public and to comment on the administration of justice, including cases before, during and after trial, without violating the presumption of innocence.

(2) This principle can only be departed from in the circumstances envisaged in the International Covenant on Civil and Political Rights, as interpreted by the 1984 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (U.N. Document E/CN/4/1984/4).

(3) The right to comment on the administration of justice shall not be subject to any special restrictions.

Scope of the Basic Principle: (deals with media rights during investigation into a crime)

(1) .. .. .. .. .. ..

(2) .. .. .. .. .. ..

(3) .. .. .. .. .. ..

(4) The Basic Principle does not exclude the preservation by law of secrecy during the investigation of crime even when investigation forms part of the judicial process. Secrecy in such circumstances must be regarded as being mainly for the benefit of persons who are suspected or accused and to preserve the presumption of innocence. It shall not restrict the right of any such person to communicate to the press, information about the investigation or the circumstances being investigated.

(5) The Basic Principle does not exclude the holding in camera of proceedings intended to achieve conciliation or settlement of private disputes.

(6) The Basic Principle does not require a right to broadcast or record court proceedings. Where this is permitted, the Basic Principle shall remain applicable.

Restrictions:

(7) Any restriction of the Basic Principle must be strictly prescribed by law. Where any such law confers a discretion or power, that discretion or power must be exercised by a Judge.

(8) Where a Judge has a power to restrict the Basic Principle and is contemplating the exercise of that power, the media(as well as any other person affected) shall have the right to be heard for the purpose of objecting to the course of that power and, if exercised, a right of appeal.

(9) Laws may authorize restrictions of the Basic Principle to the extent necessary in a democratic society for the protection of minors and members of other groups in need of special protection.

(10) Laws may restrict the Basic Principle in relation to the criminal proceedings in the interest of the administration of justice to the extent necessary in a democratic society:

a. for the prevention of serious prejudice to a defendant;

b. for the prevention of serious harm to or improper pressure being placed upon a witness, a member of a Jury or a victim.

(11) Where a restriction of the Basic Principle is sought on the grounds of national security, this should not jeopardize the rights of the parties, including the rights of the defence. The defence and the media shall have the right, to the greatest extent possible, to know the grounds on which the restriction is sought (subject, if necessary, to a duty of confidentiality if the restriction is imposed) and shall have the right to contest this restriction.

(12) In civil proceedings, restrictions of the Basic Principle may be imposed if authorized by law to the extent necessary in a democratic society to prevent serious harm to the legitimate interests of a private party.

(13) No restriction shall be imposed in an arbitrary or discriminatory manner.

(14) No restriction shall be imposed except strictly to the minimum extent and for the minimum time necessary to achieve its purpose, and no restriction shall be imposed if a more limited restriction would be likely to achieve that purpose. The burden of proof shall rest on the party requesting the restriction. Moreover, the order to restrict shall be subject to review by a Judge.

Strategies for Implementation:

Para 1 states that the Judge should receive guidance in dealing with the press and the Judge shall be encouraged to assist the press by providing summary of long or complete judgment of matters of public interest.

Para 2 says that Judges shall not be forbidden to answer questions from the press etc.

Para 3 is important and states:

"3. The balance between independence of judiciary, freedom of the press and respect of the rights of the individual - particularly of minors and other persons in need of special protection - is difficult to achieve. Consequently, it is indispensable that one or more of the following measures are placed at the disposal of affected persons or groups; legal recourse, Press Council, Ombudsman for the Press, with the understanding that such circumstances can be avoided to a large extent by establishing a Code of Ethics for the media which should be elaborated by the profession itself.