In a world where truth is increasingly under siege, journalists find themselves as torchbearers for free speech. They often encounter extradition trials, prosecution and severe penalties as a consequence of their unwavering dedication to the pursuit of truth. This post delves into the harrowing legal impediments characterizing the global crisis besieging journalism. These unsettling narratives illustrate common themes of governmental suppression of the media.
Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”) guarantees journalistic privilege as part of freedom of expression, thereby establishing a universal human rights standard. This standard is upheld through special procedural instruments that guard freedom of the media from state interference. Despite being signatories to the ICCPR, many countries violate this international standard by undermining the rights of journalists within their borders. In this piece, I explore alarming trends of information suppression driven by the misuse and misinterpretation of legislation as well as judicial overreach. This analysis will critically examine the mechanisms through which these legal and judicial practices undermine the free flow of information and highlight broader implications for democratic discourse and the rule of law.
GEORGIA
Georgia has witnessed a sharp decline in press freedoms, dropping from 77th to 103rd in the World Press Freedom Index 2024 released by Reporters Without Borders (“RSF”). This alarming trend is compounded by the recent passage of the controversial ‘On Transparency of Foreign Influence’ law by the Georgian Parliament, sparking nationwide protests and widespread condemnation. Dubbed “Russian Law 2.0” by critics, this legislation mandates that non-governmental organizations (“NGOs”) and media outlets receiving more than 20% of their funding from foreign sources register as entities “[…] pursuing the interests of a foreign power.” Initially introduced in 2023 by the ruling Georgian Dream Party, this bill was withdrawn following massive protests, but has now been reintroduced and passed while demonstrations are ongoing in the country’s capital, Tbilisi. Despite the ruling party’s claims that the new legislation aims to promote transparency, it is evident that this law can be used to suppress civil liberties and press independence in Georgia, thereby violating Article 10 of the European Convention on Human Rights, which protects the freedom to hold opinions and share information without interference, pursuant to the principles underlying Article 19 of the ICCPR. RSF has emphasized that independent media in the country heavily rely on foreign funding due to advertising laws that favor state-owned outlets. Ultimately, this new legislation has far-reaching consequences that pose a potential threat to Georgia’s aspirations of joining the European Union (“EU”). Joining the EU has long been a national priority for Georgia, but the European Parliament has halted all accession negotiations, citing the new legislation’s violation of the Copenhagen criteria, which mandate democratic governance and respect for human rights as prerequisites for membership.
The Georgian people have shown their steadfast determination by taking to the streets to protest this draconian law, reflecting a deep conflict with a Georgian Parliament determined to adopt it. However, reports of police using excessive force against peaceful protesters have surfaced, a violation of their rights to assembly and protection from arbitrary detention, as outlined in the European Convention on Human Rights (Article 5 and Article 11). This law has the potential to further stifle vital independent voices, thus undermining democratic dissent and transparency in the nation.
CHINA
The Press Freedom Index 2024 reported that China has jailed more journalists than any other nation, surpassing one hundred recently. These actions exemplify the dire consequences faced by opposing voices under authoritarian regimes, presenting a crucial challenge to the larger international human rights regime. Ranked 172nd in the Press Freedom Index, the chilling prosecution of political activists has attracted the outcry of several human rights organizations.
Several such cases, marked by a lack of clarity on charges and a lack of transparency in the proceedings, underscore grave concerns regarding the administration of justice in China. This highlights the urgent need to uphold the rights of members of the press, notably the right to a fair trial and freedom of expression. On the domestic front, Article 35 of the Constitution of the People’s Republic of China establishes that “citizens […] shall enjoy freedom of speech,” and enshrines Article 19 of the ICCPR, to which China is a signatory.
Furthermore, Article 14 of the ICCPR guarantees to all persons “with a criminal charge against [them …] a fair and public hearing.” China’s Criminal Procedure Law limits the ICCPR’s rights guarantee under Article 14 on the basis of “national security,” with this limitation depending entirely on the legitimacy of the standards used to classify state secrets. China’s use of vague and flexible standards of secrecy classification is a major impediment to the transparency of the entire criminal justice system in the country, and marks a failure to protect the nation’s democratic voices.
Journalists and human rights lawyers must be given a fair chance to contest the charges against them. The restricted access to politically sensitive criminal trials in China shows the opaque nature of information dissemination in the nation.
UNITED STATES OF AMERICA
Widely regarded as an incredibly consequential press freedom case, The Government of the United States v Julian Assange, sparked protests against the extradition of journalists to countries where they may face a risk of being prosecuted. Assange, an Australian citizen and the founder of Wikileaks, had been arbitrarily deprived of his liberty for more than a decade. He was imprisoned in the Belmarsh prison for five years in England, prior to which he sought asylum at the Ecuadorian Embassy in London for seven years. The American government had demanded his extradition on charges under the Espionage Act for publishing classified American military documents and video footage on Wikileaks. The files included evidence of American soldiers committing war crimes in Iraq and Afghanistan, including killing two Reuters journalists.
Gathering, reporting and disseminating information, including national security information, when it is in public interest, is a legitimate exercise of journalism and should not be treated as a crime. Indicting a reporter for their journalism quickly becomes an indictment investigative journalism, a pillar of democracy. Moreover, allowing the extradition of journalists would risk severe danger to their lives and liberty, especially for those journalists who report on politically sensitive issues like war crimes.
Even though Assange was released, his freedom came at the cost of his pleading guilty to the charge of espionage, a charge pursued by the American Government for over a decade. The Espionage Act has a reputation for being used to silence reporters and whistleblowers, and lacks a public interest defense. In the context of press freedom cases, “public interest” disclosure refers to the disclosure of information relating to matters of significant importance to the public, where the harm of disclosure is outweighed by the benefits. This defense supports press freedom by ensuring that journalism exposing governmental or corporate misconduct is protected. Enshrined in the First Amendment of the American constitution, the free press plays a crucial role in bringing to light information beyond what those in power make public. Without an amendment to add a public interest defense, the Espionage Act threatens press freedom and undermines the pursuit of truth and justice.
CONCLUSION
Addressing these issues requires unwavering international commitment to upholding the freedom of the press as foundational and facilitative of human rights. It is essential to confront and resist legislative and governmental actions that aim to suppress the free flow of information and intimidate journalists. Supporting a free press is essential to maintaining democratic governance and ensuring that information flows freely, thereby enabling public scrutiny and informed decision-making.
Souniya Dhuldhoya is a third year undergraduate student of law at Gujarat National Law University. Her research and academic interests include international human rights law and comparative constitutional law.
