AIPCE 6th Annual Meeting.

The Agenda.

Minutes of the 6th Annual AIPCE Meeting.

National Reports.

Self-regulatory mechanics-the activities of Readers’ Editor.

Guarding the Guardians-Second degree auditing of PCs activities, so as to counter criticism.

European directives on mass Media and European Case law: how do they affect the media-journalists-PCs work

European case law- The Princess Caroline case

Establishing Press Councils-prospects and problems-Learning from the experiences of Eastern Europe.

Publications in other than the indigenous language.

Case Study.

Should we become AIPCW?

2005 AIPCE meeting.

Beyond 2005.

Final remarks.

An article on the metting by Ian Mayes in the Guardian.


ALLIANCE OF INDEPENDENT PRESS COUNCILS OF EUROPE

 

6th ANNUAL MEETING

 

CYPRUS 7-8 OCTOBER, 2004

 

Chaired by:

Andreas Mavrommatis,

Chairman of the Cyprus Media Complaints Commission

 

 

The 6th annual meeting of the Alliance of Independent Press Councils of Europe was held in Nicosia, Cyprus, on the 7 and 8 of October, 2004.

The meeting place was the Journalists’ House, the newly build premises of the Cyprus Union of Journalists, an organization established in 1959. The meeting was actually an inaugural event for the premises, which has received an architectural competition prize.

A notable element of the meeting was the record number of participation, with close to 40 delegates from 20 countries, representing PCCs’ and organizations dealing in human or citizens’ rights.

Another notable element was the participation of delegates from former socialist countries which are in the early stages or in the process of establishing a PCC. Hence, a considerable part of the meeting was devoted to the discussion on the process, on their experiences and difficulties in establishing a PCC, and on ways AIPCE and other establishments could render help. Emphasis was given to the effort undertaken in Russia to establish regional Press Councils.

Still, on the matter of establishing PCCs’, the desirability of establishing independent PCCs’, or under law (or the law recognising the PCC’s existence, was given consideration.

The meeting was informed on the experiences of Luxembourg, where a Press Council existed but a process was under way at the time  to reform the Press Law, an effort which was described as “a kind of bridge between the free expression of opinion and the protection of privacy”, on which “a good middle ground was found between both requirements”.

Other topics discussed were the self-regulatory mechanics on site and second-degree auditing of PCCs’ work.

Unavoidably, recent law cases, both by national courts and the European Court of Human Rights, and European Directives which have a direct bearing on the work of PCCs, were given consideration.

The most notable of these law cases is the Princess Caroline Case, which was vividly presented by the German delegates.

The Market Abuse Directives of the European Union and the best way to transform them into national law was also, once again, discussed, the discussion having started at the 4th AIPCE meeting in Malta, in October 2002.

Ways of action were decided both on the national and European levels and since then some important developments have taken place. Britain and Cyprus opted for self-regulation on the matter of financial reporting and the same effort is being made to have other countries follow suit.

The question of how to treat complaints against publications that are published in a language other than the indigenous language was taken up and a consensus was reached that the cultural background of the people involved should be taken into consideration.

An interesting case study dealing with treatment of people in grief was presented by the UK PCC.

Finally, the suggestion of AIPCE expanding and becoming AIPCW was raised.

A consensus was reached that AIPCE was formulated to take account of the European conditions and needs and should stay that way, but the matter was left open for future discussion.

The meting accepted unanimously the invitation of the Luxembourg to host the 2005 meeting and three offers were made for hosting the 2006 meeting, by Ireland, Bulgaria and Israel. Firm offers for this meeting will be made later and be decided upon in Luxembourg.

After the meeting, delegates were received by the House Chairman, Mr. Demetris Christofias, visited the Cyprus Museum and the old Nicosia town and were hosted at a reception by the Mayor o Nicosia, Mr. Michael Zambelas.

On the 9th of October a full day excursion to Paphos was organised for delegates by the CMCC. They visited the ancient Roman Theatre at Curium, the legendary birthplace of Aphrodite at Petra-tou-Romiou and the Mosaics of the “Dionysos Villa” at Paphos, taking finally a dip into the sea.

 

 

THE AGENDA

 

THURSDAY, OCTOBER 7, 2004

 

09:00  Welcome

Andreas Mavrommatis,

Chairman of the Cyprus Media Complaints Commission.

Andreas Kannaouros,

Chairman of Cyprus Journalists Union, hosting the meeting.

Opening Address,

His Excellency Mr. Andreas Christou, Minister of Interior.

09:45              Welcome reception by the Ministry of Interior- Journalists’ House

10:45              Minutes of the 5th AIPCE meeting held in Stockholm, 19-20 September, 2003.

                        National reports (5 minutes each-total 1 hour, 30 minutes)

12:30              Self-regulatory mechanics-The activities of Readers’ editor (on-site Ombudsmen)

                   Ian Mayes, Readers’ editor-Guardian, President of the Organisation of News Ombudsmen

                        Guarding the Guardians-Second degree auditing of PCs activities, so as to counter criticism.

                   Prof. Jean-Claude Bertrand

 

                        Discussion

 

14:00              Lunch- Journalists’ House

15:45              European directives on Mass Media and European case law:

How do they affect the media-journalists-PCs’ work?

                        Developments on MAD directives

Henry Manisty, Reuters

European case law- the Princess Caroline case

Lutz Tillmanns, Director, German Press Council

 

Discussion-resolution

 

18:00              End of session-transport to the Hotel

 

20:30              Dinner

22:30              Coach return to the Hotel

 

 

FRIDAY, OCTOBER 8, 2004

 

 

09:00              Establishing  Press Councils- Prospects and problems

Learning from the experiences in Eastern Europe:

Danilo Leonardi, PCML-Programme in Comparative Media Law at the Centre of Sosio-Legal Studies, University of Oxford

Andrei Richter, Moscow Media Law and Policy Institute,

Angelica Sineok, Sergey Oulezko, Rostov Regional Centre of Mass Media and Law

Fedor Lavrikov Vasilievich

 

The Western Europe Experience:

The new press law of Luxembourg-regulation by law or Press Councils.

Luxembourg Press Council

The German Press Law

German Press Council

 

                        Discussion

 

Desirability (or not) to have PCs’ established by law or their existence recognized by law.

 

11:00              Coffee break- Journalists’ House

11:30              How to treat complaints against publications that are published in a language other than the indigenous language or languages.

Judge Johan Hirschfeldt, President of the Press Council of Sweden.

Case study

Anybody who has an interesting case.

 

12:30              AIPCE or AIPCW?

                        Discussion

AIPCE 2005-beyond

12.45              Closing remarks

13:00              END OF MEETING

 

 

13:00              Lunch- Journalists’ House

 

15.00              Visit to the President of the House of Representatives Mr Demitris Christofias

17.30              Walk around old Nicosia town with Mayor Mr. Michael Zampelas

19.30              Dinner-reception, Nicosia Town Hall, hosted by Mayor Mr Michael Zampelas

21.00              Return to the hotel.

 

SATURDAY, OCTOBER 9, 2004

 

08:30              Departure for Paphos

10.00              Pass by Ancient Amathous

10:30              Stop at the 13th century Colossi Castle built by the Crusaders

11.00              Stop at Curium Greco-Roman Theater

12:00              Petra tou Romiou (Aphrodite’s birthplace)-short coffee stop

12:30              Visit of Paphos Mosaics (Tombs of the Kings?)

13:30              Lunch- Stoll at promenade

16:00              Departure for Nicosia

18.30                            Arrival at Hotel

 

FREE ACTIVITIES


 

 

MINUTES OF THE 6th ANNUAL AIPCE MEETING

 

The 6th annual AIPCE meeting was held at the Journalists’ House in Nicosia, Cyprus, on the 7th and 8th October, 2004

 

Delegates Attending

 

Remzi LANI

Albania

Boris NAVASARDIAN

Armenia

Flip VOETS

Belgium

Nermin Durmo

Bosnia-Herzegovina

Ognian ZLATEV

Bulgaria

Finn ROWOLD

Denmark

Henrik RIIS ANDREASEN

Denmark

Tiina KAALEP

Estonia

Juha  HANNINEN

Finland

Claude-Jean BERTRAND

France

Levan RAMISHVILI

Georgia

LutzTILLMANNS

Germany

Ilka DESGRANGES

Germany

Frank CULLEN

Ireland

Yehiel LIMOR

Israel

Charles RUPPERT

Luxembourg

Fernand WEIDES

Luxembourg

Joseph LORENT

Luxembourg

Angelica SINEOK

Russia (Rostov)

Sergei OULEZKO,

Russia (Rostov)

Fedor Vasiliievich LAVRIKOV

Russia

Andrei RICHTER

Russia

Johan HIRSCHFELDT

Sweden

Peter STUDER

Switzerland

Taras KUZMOV

Ukraine

Tim TOULLMIN

UK

William GORE

UK

David CHIPP

UK

Robert  PINKER

UKChairman of Press Council of Bosnia & Herzegovina

Ian MAYES

UK (Readers’  Editor-Guardian)

Stewart CHISHOLM

UK  (Open Society Foundation)

Sara BUCHANAN (GAUNT)

UK (Article 19)

Danilo LEONARDI

UK  (PCLMP - Programme in Comparative Media Law at the

Centre for Socio-Legal Studies, University of Oxford University

Henry MANISTY

UK (Reuters)

Andreas MAVROMMATIS

CYPRUS (CMCC)  Chairman

Petros ZACHARIADES

CMCC Vice-chairman

Petros PETRIDES

CMCC Secretary

Alexandra GALANOU

CMCC member

Andreas KANNAOUROS

CMCC member

Antros MICHAELIDES

CMCC member

Eleni MARANGOU

CMCC member

George THEODOULOU

CMCC member

George PAVLIDES

CMCC member

Joseph JOSEPH

CMCC member

Kypros KOURTELLARIS

CMCC member

Maroula IAKOVIDOU

CMCC member

Masis der PARTOG

CMCC member

 

Note: Vugar Rahimzada, of the Azerbaijan Press Council could not attend because he had to undergo urgent operation and Prof. Giuseppe Mifsud Bonnici, Chairman of the Maltese Ethics Commission could not arrive in time.

 

 

 

The meeting was chaired by Andreas Mavrommatis, Chairman of the Cyprus Media Complaints Commission.

 

Thuerday, 7th October, 2004

 

Welcome ceremony

 

The Chairman of the Cyprus Media Complaints commission Mr. Andreas Mavrommatis welcomed the delegates at the meeting, hailing their presence as an “indication of your interest in the role that the media play in every day life and at the same time a source of encouragement to all of us un the AIPCE to continue trying to improve ethics, to respect deontology and raise standards but in such a way, mainly through self-regulation, as will in no way gag the media or adversely affect the freedom of the press in its widest sense”.

Mr Mavrommatis also thanked all donors who made possible the holding of the meeting and the presence of so many delegates.

Mr. Andreas Kannaouros, the Chairman of the Union of Cyprus Journalists, who hosted the meeting, also welcomed the delegates.

Mr. Andreas Christou, the Minister of the Interior was called to give a welcoming address.

The Minister praised the work Press Councils carry out in their respective country and the effort undertaken to set up Press Councils in of former socialist countries.

He said that the media, having full freedom of expression should not enjoy any form of impunity vis-à-vis the law and the society, but should display a form of responsibility, the Press Ethics Code playing the role of a contract between the Mass Media and Society.

He said that “self-regulation which aims at raising the quality of press work, the observance of press ethics an the provision of correct information to citizens serves the interest of all parties. The Minister added that “the government supports your effort, as the promotion of freedom of expression and the provision of truthful information to citizens in the final analysis promote democracy and peace”.

The Minister hosted a welcoming reception for delegates.

 

WORKING SESSIONS

 

Thursday, October 7, 2004

 

1st Session, 10.45 a.m

 

The Chairman declared the meeting is session.

 

The minutes of the 5th AIPCE meeting held in Stockholm, 11-12 September, 2003 were approved.

 

National Reports

 

Delegates presented their national reports, as follows:

 

1. Tim Toullmin, Director of the UK Press Complaints Commission, reported that the hurdles presented by a parliamentary select committee had been overcome in 2003 and that the previous twelve months has been concerned with putting in place a number of reforms.  In particular, he spoke of the introduction of a Charter Commissioner who had the power to investigate complaints about the way the Commission itself had handled   cases.  In addition, the Commission's majority of public members had been increased from nine out of sixteen to ten out of
seventeen.  The Code of Practice was revised in June in order to account of technological advances - although there were no radical changes. He explained that, with regard to rulings that the Commission had made, there had been few controversies.  However, a major threat over the last year had come from legal cases - for example those of Naomi Campbell and Princess Caroline - which had referred to questions of individuals' privacy.  While it was still unclear as to the long-term impact of those cases, the fact remained that many lawyers were using recent judgments to put pressure on the Commission.
 

2. Remzi Lani, Director of the Albanian Press Institute said the Institute is now moving in two directions, namely to improve the defamation law and the Press Law and also re-issue the Ethical Code. He said Albania is in need of a Press Council because the Media are now frequently taken to court.

 

3. Ognian Slatev, of the Bulgarian Media Development Centre is in the process of establishing a Press Council. An understanding exists between the journalists and publishers. There is an argument whether there should be a separate Press Council for the written media and one for electronic media. Newspapers are now frequently taken to court for libel.

 

4. Fernand Weides, Vice-chairman of the Conseil de presse du Grand-Duche de Luxembourg, said the Council is the official discussion media-partner to discuss press and media affairs with the government. In the last 12 months it distributed  new journalist cards, organised training seminars and had discussions with the Luxembourg Medical council on ethics in the field of medical journalism, organised the operation of “press in school”, had several representative jobs to do and discussed with the government media service about the new “data protection” law and the “new press law” (to replace the one of 1869), known as the “Law of the 8th of June, 2004, to ensure the freedom to express opinion in the media”.

 

5. Henrik Riis Andreasen, Legal secretary of the Danish Press Council, said 163 complaints were received last year, the second highest number ever, and up to now this year 105 complaints were received. The Chairman scrutinises the complaints and decides whether to examine or reject any one of them. The Council seeks unanimous decisions and members dissented in only 5 cases. The Council was convened 73 days last year and its aim is to have a case decided within 3 months. A complaint has to be made by a person or organisation having a legal interest, but a case can be taken up either after a proposal by the public, or on the Council’s own initiative, which has happened only once, in 1997. The Council is lately criticised from various sides for its reluctance to take up cases on its own initiative and for taking too long to consider cases.

 

6. Ilka Desgranges, Chairman of the German Press Council said the main complaints received in 2004 had to do with bugging operations, financial market reporting, improper photos, the freedom of information act on access to "STASI" files and the Caroline Judgement.

The German Press Council believes that the freedom of the press in Germany is being increasingly restricted through various bills and European judgements.

Another topic dealt with in 2004 was the German Press Council itself. Critics suggest that the German Press Council widens its scope so as to bring under its jurisdiction all media.

Some important changes regarding the German Press Council was the increase of the members of the Plenum from 20 to 28 members. The complaints panel works in two chambers of six members each, three publishers and three journalists, so as to speed up work due to the large number o complaints. A third chamber deals with data protection.

Last year there a total of 682 complaints were lodged. The number of cases checked via the press code of conduct was 542. The complaints panel dealt with a total of 235 complaints and 8 were checked by the editorial data protection panel.

There were 20 public and six non-public retractions, 49 disapprovals and 55 warnings. Except in two cases, all public retractions were printed by the offending publication.

Newsletters with the decisions of the Council was published and distributed to 550 editorial departments. It is also available to the public free of charge.

The yearbook published in August focused on editorial independence and in September a public hearing on cruel and violent photos and in November a symposium will be held in Berlin on the Freedom of the Press and Data Protection.

 

7. Peter Studer, President of the Swiss Press Council, spoke on the Fairness Principle as a necessary component of ethics in the media, giving a detailed account of what various media regard as fairness. He stated that the fairness principle should not be confused with “objectivity”. Fairness means to give the other side the right and opportunity for a considered response. The Swiss Press Council has never recognised a duty to be “objective”-as long as the public can separate facts from opinion. With this in mind the Swiss Press Council has added a new directive to its Code of Practice requiring journalists to give to people the chance to express their views on serious allegations against them.

 

8. Yehiel Limor, Public's representative on the Israeli Press Council, said the Council panel, consisting of representatives of the publishers, (30%), the journalists (30%) and the public (40%) receives an average of 70-100 complaints every year. The PC helps to protect the media against law regulation. The Israeli PC faces at the moment a crisis because for more than a year it has been left without a chairman, who has to come from the public. There is confrontation, because the publishers want to impose their candidate, while the public's representatives support their own candidate.

 

9. Levan Ramishvili, from Georgia, said efforts are being made to set up a Press Council, which are however hampered by rivalries between the media. Journalists are working on promoting media legislation relating both to the written and electronic media and reform of the law on libel and slander.

 

10. Tiina Kaalep, Chairman of the Estonian Press Council said the panel, comprising of 16 members (8 from the media, 4 from the journalists and 4 from experts and law people) consider an average of 100 cases a year. Most common complaints relate to the right of privacy, photographs and headlines.

 

11. Flip Voets, of the Press Council for the Flemish speaking part of Belgium, said the Council, set up in 2002, comprises of 6 representatives from the publishers, 6 from journalists and 6 from outside the press industry. Last year it received 45 complaints, mostly having to do with the right of privacy and with lack of accuracy. Of these complaints, 20 were settled and 10 decided upon. The French speaking part of Belgium has not yet set up a Press Council. The Flemish Council is in close contact with the French speaking media industry. The Belgian judiciary has been under criticism for not offering protection for the sources of journalists and Parliament is discussing a draft bill aimed at protecting the sources of journalists.

 

12. Taras Kusmov, of the Journalistic Ethics Commission of Ukraine said that it is close to impossible to set up a commission and formulate an ethics code, because the media in the country are being manipulated and controlled by politicians. The government tells the Media what will not be news and which topics will be news and how to be reported. The credibility of the Media is at its very lowest. Despite this situation, an effort has been undertaken this year to set up a Journalistic Ethics Commission and it has already started receiving complaints from the public, which is an encouraging sign.

 

13. Nermin Durmo, Director of the Press Council of Bosnia & Herzegovina said the Council, established in 2000, had become operational in 2001. It consists of 12 members, 6 coming from the Press and 6 from the public, with an Independent Chairman, Robert Pinker, International Adviser of the UK Press Council.

Most complaints received concern breaches of the right of privacy and unfair reporting. A serious problem for the Council is funding is activities, which has lead to a decision to allocate 4 seats on the panel to newspapers, which in return will pay a contribution to the Council.

 

14. Frank Cullen, of the National Newspaper of Ireland announced that good, although slow progress is being made towards establishing an Office of Press Ombudsman and a Press Council, encompassing both national and regional papers, as well as UK titles with Irish editions. The Steering Committee is almost ready to present a final proposal to the government as to the type and structure of the Press Council, while a code Committee is finilising a Code of Practice. An appointments committee will undertake the task of appointing the independent chairman of the Council, its members and Press Ombudsman, and an administrative committee will be responsible for matters of funding. The government has promised to proceed with law reform concerning libel. The Council will not be a statutory one, as was originally proposed, but it will be recognised by Law. A Bill will be tabled within the first six months of next year and hopefully the Council will be established in 12 months time.

 

15. Andrei Richter, of the Moscow Media Law and Policy Institute talked on the tasks of the Grand Jury, established in 1998. The main problem of the Jury is the refusal of the papers concerned to publish its decisions. They are published, though, by a trade paper, which however does not enjoy a high circulation.

 

16. Boris Navasardian, President of Yerevan Press Club said journalists are working on establishing an institute of media self regulation. There was resistance to this effort because of the political polarization in the country and fears that journalists would be deprived of their freedom of expression. Now this has changed because journalists are taken to court on defamation charges. A campaign for self-regulation started last year with the aim of finding a balance between self-regulation and a more liberal media law and a revised law of libel and defamation.

 

17. Johan  Hirschfeldt, Chairman of the Swedish Press Council explained the workings of the country’s dual system of Press Ombudsman and Press Council. The Council has in 2003 found for the complainant in about 40 cases of in total about 100 cases. A notable case was the publication of close up pictures by Expressen, showing Foreign Minister Anna Lind after being shot. The pictures showed her on a stretcher very weak and with blood stains. The paper gave an explanation that the pictures were part of the history of the country, but both the Ombudsman and the Press Council criticized the paper for publishing the close-up pictures. This case was followed by a related one, when a man known for criminal activities was arrested on suspicion for the murder of the Minister, put in custody and released on the same day, when a second man was arrested and subsequently found guilty of the murder. There were many reports about these two men at the very early stages of the arrests. The first man did not complain, but the sentenced man lodged a complain. The Ombudsman decided not to criticize in this case (the Council has later on decided to follow the Ombudsman).

 

 

18. Juha Hanninen, Secretary of the Fin Council for Mass Media referred to interesting developments in the field of self-regulation. A new Chairman of the Council was selected to serve for the next three years. The Council received 96 complaints in 2003 and 94 up to now this year, so a total of 120-130 is expected by the end of 2004. The Council is concerned about text advertising, loose and provoking language in internet publications and focusing on the private life of public personalities. The courts seem to have discontinued the practice of judging decisions of the Council, as it happened last year in one case.

A new Law on the freedom of speech came into effect at the beginning of this year, covering all Media, print and electronic, including internet publications. The Union of journalists approved the updating of the Code of Practice, which will come into effect early next year.

A meeting of Nordic Press councils was convened in September in Tampere which discussed the decisions of the European Court of Human Rights concerning the freedom of expression and the right of privacy.

A discussion is taking place on reforming the Council and a working group is likely to be set up to report on reforming the self regulation system. One of the options debated is to have a Commissioner for media ethics, working alongside a more independent Council.

 

19. Phil Maselli (not attending) Coordination for International Relations of the Italian Ordine dei Giornalisti submitted a written report stating that the number of Italian Journalists as of June, 2004 was 74.869. The Ordine heard 64 cases in the three-year period up to June, 2004 for breach of the professional and ethical code. The Ordine can take a series of actions like verbal reprimand, written reprimand, temporary suspension and expulsion from the profession. A total of 347 cases not requiring disciplinary action came before the Ordine dei Giornalisti during the same space-time.

 

20. Petros Petrides, Secretary of the Cyprus Media Complaints Commission (its actual name translated from Greek is Committee for Journalistic Deontology) gave an account of the work of the Commission for this year. Up to the end of September 22 complaints were lodged, a good number for Cyprus (and increased relatively to last year). The Commission is increasingly looked upon by people as competent body to seek redress when feeling injured by news reports. At least five of these complaints were lodged by politicians and one of the most notable cases involved EE Enlargement Commissioner Guenther Verheugen’s right to air-time on Cyprus Media. The Committee on Culture, Science and Education of the Council of Europe requested the ruling of the Commission on the case.

 The Commission feels that the public is not still fully aware of their rights and the work of the Commission, something which will be addressed soon. (The publicity given to the AIPCE meeting has already generated an increased interest). The Commission can examine complaints lodged by people directly involved and by the general public and take up cases on its own initiative. It issues decisions which the offending party has an obligation to print (in many cases this is not done), and general guidelines to the Media and Journalists. Most common complaints concern the rights of suspects, revealing the names of children or victims of sexual abuse (mainly done in an indirect way or inadvertently) and inaccurate reporting.

The Commission is one of the Press Councils having jurisdiction both over print and electronic media. It is an independent body set up by publishers, owners of electronic media and journalists, having 3 representatives each on the 13 member panel. The other four are selected from among the public, with the Chairman being at the time a former judge and human Rights Expert, Mr. Andreas Mavrommatis. Though not established by law, its existence is acknowledged by the Radio and TV Authority Law, which states that the Authority cannot examine a complain for breach of its Code of Practice (identical to the Commission’s Code) unless it has the a written request by the CMCC.

 

 

 

2nd Session -12.45 p.m.

 

Self-regulatory mechanics-the activities of Readers’ Editor (on site-Ombudsmen)

 

Ian Mayes, Readers’ Editor of the Guardian, President of the Organisation of News Ombudsmen), said that there are about 80 News Ombudsmen world wide since this kind of internal auditing started in the USA in the early ‘96s (most of them in the US) and gave an account of his work at the Guardian. The system was started in the Guardian in the early 1967 .The Readers’ Editor audits news at a first stage, while a second stage auditing is done by an external Ombudsman. He makes about 10.000 contacts with readers every year, while eight to ten cases go before the external Ombudsman.

A Readers’ Editor has to safeguard his total independence though his contract of work.

He publishes a daily column of corrections and writes a weekly column on ethical issues, informing the public how the paper works and what laymen can do when feeling injured. He also looks after the misuse or abuse of English language.

A successful Readers’ Editor should seek a kind of consensus from the journalists. Personal contact helps and Ian Mayes makes a point of talking personally to journalists instead of sending them messages. His decisions are posted in the web-page of the Guardian and journalists see the complain, together with his decisions.(more)

 

Guarding the Guardians-Second degree auditing of PCs activities, so as to counter criticism.

 

Prof. Claude-Jean Bertrand titled his presentation of the topic “Watching the Watchdog-Watching Dog?”

 

Prof. Bertrand said that he is doing just this for 32 years. He said that over half the existing PCs were set up since 1990 and one third of them since 2000. PCs are no longer perceived as a threat to press freedom, but rather as a weapon to protect it.

Yet he feels depressed because contempt for and hostility towards PCs are still intense in many parts of the world and because they are partly justified.

The record of PCs is not impressive and they have rarely acquired much influence and the few books about PCs shovel criticism upon them, either as a plot of the Government to restrict Press freedom (France), or as PR operation to avert restrictive laws and persuade the public that they care about delivering good public service. The citizens are either not aware of the PC’s existence or what it is for and if aware they do not believe it can improve the media.

Largely, this is due to the fact that PCs have no teeth and lack the power to punish. PCs succeed only in two limited missions, to avoid costly law suits and the establishment by law of some supervisory agency.

A true PC should take advantage of the fact that it brings together the publishers, the journalists and the public, that it is a permanent democratic institution and its sole purpose is to improve the media service to the public. So they should stand as symbol of democracy, by striving to improve media services by monitoring the press, encouraging research, developing other accountability systems and putting pressure on the government not to vote laws unfavorable to the media.

Evaluation of the PCs work should come from the PC itself, other PCs, other “media accountability systems”, like an internal ombudsman. But the problem is not so much to watch PCs but what they do not do.

Prof. Bertrand suggested that all PCs should be mixed, cover all media, publicise their existence, initiate cases by monitoring the media, be well financed (why not by the government as well?) spread their activities to reporting on the news media scene, commissioning research and issue public warnings on dangerous trends, develop a loose network of accountability systems like local and regional PCs and cooperate more on the international level to help each other, promote creation of new PCs and join forces in campaigning on important issues.

Prof. Bertrand concluded that p PC cannot do its job alone, because if alone in cannot become a true instrument of media progress.

Prof. Bertrand’s presentation generated a lively discussion with Prof. Robert Pinker dissenting on the suggestion that PCs should be concerned with research.(more)

 

3rd Session, 15.45 p.m

 

European directives on mass Media and European Case law: how do they affect the media-journalists-PCs work?

 

On the topic of developments regarding the European Commission MAD directives, Henry Manisty, of the Legal Service of Reuters, presented the latest developments concerning the Market Abuse Directive and more specifically on the Market Abuse Directive of 28 January, 2003 (Directive 2003/6/EC-‘MAD”) and the implementation directive (Directive 2003/125/EC-“MADID”).Both have should be implemented into national law by 12 October, 2004, but the majority of states are still finalizing their legal texts, including aspects relating to journalists. Both directives impose obligations on anyone producing or disseminating investment recommendations.

He pointed out that the directives expressly offer member states some choices and flexibility in national implementation, including the option of self-regulation. (MAD Recital 22, Mad Recital 44 and MADID Recital 11).

MADID expressly permits members states to exclude journalists from the obligation to publicly identify all those involved in the preparation of the recommendations (MADID article 2), to set standards of the fair presentation of recommendations (article 3) and set standards for disclosure of interest and conflicts of interest (article 5).

Henry Manisty pointed out that MADID article 8, especially the final paragraph, which was added  at a very late stage “raises potential difficulties of the media”, in that it requires the media to identify and publish in their reports “where the disclosures related to the source of document can be directly and easily accessed by the public”, the difficulty emanating from the fact that the media often do not have the time to verify the information or the space in a page to comply with the requirement.

He suggested that member states should make use of the option that MAD and MADID give them to implement the directives through the mechanism of media self-regulation, giving several reasons for this.

He concluded that MADID rules are more strict than MAD, as they operate in all cases and do not depend on there being any criminal purpose by the producer or disseminator, while by contrast, MAD article 1 governs the offence of market manipulation, acknowledging that innocent mistakes by journalists can take place in the newsroom and that such mistakes should not be regarded as market abuse.

 

Lutz Tillmanns voiced objections by the German Press Council to the Securities Trade Act which was passed by both House of the German Parliament with the object of transforming the EU directives into national law. The Federal Institute for Financial Services Supervision (BaFin) was granted the right to “examine the consistency of self-regulating mechanisms with European legal standards” and concluded that existing self-regulation does not meet current statutory standards. As a result, Bafin is authorised and review the compulsory registration and behaviour regulation of the Press. The German Press Council believes that there is a risk that the authorities could start to directly control financial market reporting and that “BaFin’s authority to make resolutions is in direct contravention of the principles of independent press and broadcasting services”.

Since May, 2000 the Press Council of Germany has sensitised journalists to insider and other information with potential consequences for security prices and updated Press Council guidelines on financial market reporting are currently being prepared.

Lutz Tillmanns pointed out that effective media self-regulation makes for sensible legal policy and legislation.

Presently, under discussion are to directives by the Minister of Finance, one setting out detailed criteria for determining when inside information is precise and price sensitive and the other establishing standards for the fair presentation of investment recommendations and the disclosure of conflicts of interest. Though the directives do not set out the rules, they will influence the framework of self regulation. An expert commission of the Press Council is planning an extension of the press code on self-regulatory mechanisms for the application of these basic principles.

Frank Cullen raised the question as to what can be done, in view of the fact that the EU legislation is already in place.

The meeting resolved that the Luxembourg Press Council, which will be hosting the next AIPCE meeting, will arrange a meeting for the AIPCE with Commissioner for Information Society and Media Viviane Reding, (Luxembourg) to explain the vital work of Press Councils and to request her assistance in ensuring that new EU Legislation does not undermine this work.(more)

 

 

European case law- The Princess Caroline case

 

This topic was presented by Luts Tillmanns, Director of the German Press Council.

 

I.                    The facts of the case

 

The legal arguments have been going on now for eleven and a half year. They refer to relatively ordinary circumstances. The case is centred on the legitimacy of publishing photographs of Princess Caroline’s  private life. The photos were taken in the course of public appearances, such as playing tennis, riding, shopping, at a restaurant and at a beach club.

The photos and accompanying articles were published in mid-1993 and at the beginning of 1997 in the German magazines, Bunte and Freizeitrevue.

There have been numerous decisions made by German courts on the law suits. Finally, on 15th December 1999 the Federal Constitutional Court in Karlsruhe was to decide on the interpretation of basic rights by the highest German civil court (Federal Court of Justice, judgment from 19th December 1995) as part of a constitutional complaint – submitted by Caroline von Hannover. The Federal Constitutional Court considered the issues of general personality rights and the freedom of the press. The interpretation of these basic rights (article 2, paragraph 1, in conjunction with article 1, paragraph 1 of the German Basic Law) by the court resulted in photos showing Caroline with her children being deemed unacceptable. In 1999, the court referred to the special need for protecting children. At the same time, the German judge also found that the Princess herself was a contemporary ‘public figure’, and as such must accept the publication of photographs showing her in public places. Caroline von Hannover launched an appeal against this judgment at the Strasbourg ECHR in 2000.

On the subject of private life, the European Court of Human Rights also deemed this to include the uninterrupted development of the personality and the relationship to other people. This also certainly includes contact with other people, where it occurs in public.

According to the court, protected private life includes the right to control the use of one’s photo/image. Consequently, the ECHR came to the conclusion that the publication of the photographs in question came under the application of the right to protection of one’s private life.

The German Press Council believes the judgment will also fundamentally endanger political reporting. It is not the job of the Press Council to defend the publication of these photographs in the yellow press. However, the ECHR judgment poses grave uncertainties for practical journalism.

The Press Council has also pointed out that the protection of personal rights in Germany is not only guaranteed at the highest judicial level. Self-regulation is often called upon and also plays a vital role in this area. Ethical standards established by journalists and publishers as well as the comprehensive practice of the Press Council judgments ensure a balanced protection of personal rights. This system of voluntary self-regulation must certainly be strengthened in the future.

 

Various aspects of the case were discussed by delgates.(more)

 

Sebsequently, Sara Buchanan send to participants by e-mail extracts of comments written by the Director of ARTICLE 19 Law Programme, Toby Mendel for the IViR (Institute for Information Law), in which he stressed it is  important to judge the case on the details of what the decision says, rather than entirely by the outcome.

The comments are:

In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest.[1][1]

 The Court also stipulated:

 The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.[2][2]

The domestic courts held that Princess Caroline was a figure of contemporary society “par excellence” and therefore had no right to privacy unless she was in a secluded place out of the public eye. This standard might be applicable to politicians exercising official functions, but was not applicable in the present case. As the Court noted in relation to the applicant, “the interest of the general public and the press is based solely on her membership of a reigning family whereas she herself does not exercise any official functions.”

It is interesting to note that the Court appeared to be prepared to allow wide latitude, even to photos, which made some contribution to debate on a matter of public interest. The complete lack of such contribution in the present case – perhaps best exemplified by the photo of Princess Caroline tripping on the beach – mandated the particular conclusion reached.

The legal team at ARTICLE 19 is reviewing the matter and a detailed brief will be made available.

 

END OF DAY 1

 

 

 

Friday, October 8, 2004

 

1st Session, 09.00 am.

 

Establishing Press Councils-prospects and problems.

Learning from the experiences of Eastern Europe.

 

The topic was introduced by Danilo Leonardi, of Programme in Comparative Media Law and Policy at the Centre for Sosio-Legal studies, of the University of Oxford.

He reported on the Russia Media Law Networking Project, a three-year project aimed at establishing two regions of Russia, Nizhny Novrogod and Rostov-on-Don with the purpose of practical application of  the self-regulatory idea.

The project is being financed by the Department for International Development, UK Government. Participants in the project are PCMLP, Oxford, the Moscow Media Law and Policy Centre, the Rostov Centre for Mass Media Law and the Nizhny Novrogod Centre for the Protection of Press Rights.

The project was undertaken after the Department for International Development identified a “defamation problem” and low standards of journalism in the Russian regions, e.g. numerous lawsuits, confused rulings, political and commercial pressures on the media and unethical journalism.

The selection of these two regions was based on their similarities and their almost identical population.

Year 1 project aims were to set up regional media law and policy centres in the two regions, which will explain the models of self regulation to their relevant communities and build a dialogue among media, legal communities, regional administration and other “stakeholders” and to assess conditions for self regulation via surveys.

The surveys of the laws and regulations and the attitudes in the two regions showed that the competition between the different media was not seen as an obstacle to the collaborative effort and that despite scepticism towards collective actions, stakeholders would take part in a pilot project if the body is respectable, the initiative gets a positive attitude from the governor and the administration and if participation in the project could add something positive to the popularity of the journalists and the papers in the eyes of their bosses.

Aims of Year 2 of the project were for the regional centres to acquire managerial independence, assist with fund raising for the activities of self-regulatory bodies in Year 3 and develop an assessment tool.

Year3 aims were to launch the pilot media councils, (set up in December, 2003) the Regional Centres to update the legal and attitudinal survey and assess how the experience can be applied elsewhere in other Russian area, prioritized by the DFID.

Danilo Leonardi presented the first case decided upon by each council. In both they found against the offending newspapers, which published the decision.

Sergei Oulezko, Chairman of the Rostov Regional Council on Information and Secretary Angelica Sineok, gave details o the formation of the Council.

The Council was founded under the aegis of five specialized Nongovermental Organizations, Rostov Regional Centre for Law and Mass Media, Moscow Media Law and Policy Institute, Rostov Regional Public Union of the Journalists of Russia, Rostov Regional Branch of All-Russian Public Organization of Mass-Media Workers "MediaSoiuz" and the Union of the Journalists of the Rostov Region.

The Council is comprised by the heads of the three regional journalists’ associations; Mass-Media owners; the  editors-in-chief of Press-Media specializing in covering legal problems; heads of committees and departments of the Regional Legislative Assembly supervising Mass-Media activity; scholars and scientists of various higher educational establishments engaged in legal, social and political aspects of Mass-Media activity.

There are seventeen arbitrators contributing to the Council.

The basic task of the Council is to help Russian citizens enjoy their constitutionally fixed information rights, to stimulate social responsibility of Mass-Media. In its activity the Council is guided by the Constitution of Russian Federation, federal laws and codexes.

Special emphasis is made to article 19 of  the Declarations of Human  Rights and article 10 ECHR "Freedom of Expression " of the European Convention on Human Rights and basic freedom, and decisions of the European Court on Human Rights.

 The Council takes up cases raised by persons concerned. It also examines case on its own initiative.

The decisions of the Council are only recommendations but the judicial authorities of the region take into account decisions of the Council in 90 percent of the cases.

Sergei Oulezko and Angelica Sineok referred in detail to some of the most notable cases examined by the Council.

Typical complaints lodged with the Council are about distortion of facts, substituting facts with opinion, manipulative influence upon the readers,

Disrespect for professional rights of journalists (also by other journalists) and unfair competition.

Concluding their presentation, they pointed out that conditions in a society of transit democracy are special. Russian Mass-Media, relieved from censorship, experience constant pressure on the part of authorities, changing legislation and influence from administrative bodies. In this situation Mass-Media quite often neglect the interest of the public, thus losing public support and making the situation even more complicated. The task of the Council is to overcome this vicious circle. It came to the conclusion that, in realizing the aims of a regional body of Mass-Media self-regulation in conditions of a society in transition democracy with a traditionally  strong executive authorities, it is necessary to lay emphasis on the association of various social and professional groups around the idea of self-regulation and to develop close interaction and cooperation with more "weak" branches of authorities - legislative and judicial;

“It is important for us to feel a part of the international expert community; therefore it would be good to develop special programs for exchanging experts between self-regulatory Mass-Media bodies. The direct participation of our experts in legal proceedings in other countries would promote the legal and ethical standards in all European Mass-Media”.

 

On the topic of the Western Europe Experience, Joseph Lorent, Secretary General of the Luxembourg Press Council spoke on the new Press Law of Luxembourg (“Freedom of expression of the media”) to replace the one in force since 1869.

The Press Council was broadly involved in the whole debate and delivered his opinion several times in written form. The Press Council had discussions with the Prime Minister and the Minister of Communications and the Media Commission of Parliament.

The new law is a kind of bridge between the free expression of opinion and the protection of privacy. This was not an easy task, but finally a good middle course was found between both requirements.

The Luxembourg Press Council was established by law in 1979 with the aim of recognition and protection of professional journalists. That law defined the conditions a journalist had to fulfil in order to get a press card and defined the mission of the Press Council. Its mission and rights were limited and not too clearly defined.

Under the new media law, the Press Council can decide if the conditions to obtain a press card are fulfilled or not.

Other tasks allocated by the legislator to the Press Council are:

            ° to prepare a code of deontology defining the rights and the duties of journalists and publishers.         

° to create a Complaints Commission whose duty consists  in  receiving   and treating complaints introduced by individuals

            ° to analyse, either on his own initiative or at the request of the government, all questions concerning the freedom of expression of the                media;

            ° to make recommendations and guidelines for the work of journalists and publishers and to organize training courses.

The new law has created a complaints commission, composed by five members, two publishers, two journalists and one representative of the public. The president of the Press Council is not allowed to be a member of the complaints commission, which is a self-regulatory institution.

 

 On the subject of the German Press Law, Lutz Tillmanns reported that there are no new developments concerning the Press Law as such, but and effort is under way “to combine the regional press laws and bring them under Federal Jurisdiction”.

 

A discussion followed on the desirability, or not, of having Press Councils established by law of their existence recognised by law.

Frank Cullen, of the National Newspaper of Ireland, reported on developments in Ireland, where a law is being drafted for the establishment of a Press Council. Under the law, a court has to take into consideration the existence of the Press Council (see Irish national report).

Tim Toullmin, Director of the UK Press Complaints Commission noted that once the Code is referred to in the law, one does not know where it stops.

William Gore, assistant director of the UK Press Complaints Commission, noted that it can be possible for a Press Council that has been established by law to work effectively.  The question is whether the Council is seen to be impartial or not – and a legal basis can have a major bearing on that question.

Finn Rowold, of the Danish Press Council said that one has to look what the situation is in each individual country.

Boris Navasardian, President of the Yerevan Press Club said that the setting up a Press Council by law is undesirable, as it may become an instrument in the hands of the Government.

David Chipp, International Consultant of the UK Press Complaints Commission, reported on the recent setting up of Press Council in Sri Lanka. There, the PC was established voluntarily on the initiative of the industry.

Andreas Mavrommatis, chairman of the Cyprus Media complaints Commission, said that in setting up a statutory PC, there is a danger of government manipulation.

 

During brake, the matter of financing the operation of the IPC web-site was discussed by heads of delegations. Tim Toullmin said its cost runs to some thousands of pounds and that financing is getting difficult.

There was a consensus that the site is a useful instrument in keeping PCs in touch with each other and serving as a coordinator in the absence of an AIPCE infrastructure.

The question of sharing the costs was raised and it was noted that having in mind the financial situation of most PCs, this would prove difficult. The possibilities of either getting ad revenue or of giving the site to a University Faculty to run were raised for consideration.

 

2nd Session, 10.40 am.

 

Publications in other than the indigenous language

 

The question of how to treat complaints against publications that are published in a language other than the indigenous language or languages was taken up.

The question had been raised by the Swedish Press Council. Its President, judge Johan Hirschfeldt reported on a case of such a publication being examined by the Swedish Council, which had given rise to the question.

Lutz Tillmanns said the practice in Germany is to call an expert to give the cultural background of the country. Most such cases in Germany are related to publications in Turkish.

There was a consensus that in examining such complaints a sound translation in of the publication n the indigenous language is needed and the cultural background of the people involved should be taken into consideration.

Andreas Mavrommatis, Chairman of the CMCC noted that as a matter of equality, assistance should be given to people not having the means to have a translation of the publication prepared.

 

Case Study:

 

Willian Gore reported on a complain concerning a story in a local paper in Wales, saying that a Porth pensioner who died alone in his house had been partially eaten by his own dog.

His sister complained about insensitive reporting (Intrusion into grief).

The complaint was upheld. The PCC hand noted that “the protection of the vulnerable is at the heard of the Code o Practice-and the Commission recognises that close relatives of deceased people are particularly vulnerable in the immediate aftermath of a death. That is why Clause 5 (intrusion into grief) relates both to the manner in which news is gathered and to the publication of the news, requiring that newspapers handle stories “sensitively” at such times”.(more)

 

 

Should we become AIPCW?

 

The suggestion was put that AIPCE might widen its scope and expand outside Europe.

Fernand Weides, Vice-Chairman of the Luxembourg Press Council said that it is important that AIPCE remains European.

Claude-Jean Bertrand pointed out that at time when the “World Association of Press Councils” disintegrates, it would be beneficial if AIPCE expanded and took up the mission of cooperating or assisting in new Press Councils being established. He pointed out that of about 75-80 Press Councils world-wide, half of them are situated in Europe.

Peter Studer, President of the Swiss Press Councils said that AIPCE has to have criteria as to who comes in.

Andreas Mavrommatis, Chairman of the CMCC said that it is too early to expand. Criteria and procedures have to be set but AIPCE could accept observers from non-members.

Robert Pinker, International Adviser to the UK Perss Complaints Commission consented to the remarks by Mr. Mavrommatis.

Boris Navasardian, President of the Yeravan Press Club said that AIPCE should not be limited to the EU countries, but it should expand to include the area of the Council of Europe, since all CoE countries, including Armenia, are committed to similar standards regarding the media. In the absence of an application from a non-European PC or other self-regulation body it was not appropriate to discuss the issue.

 

The suggestion did not pass, but the matter was left open for future discussion.(more)

 

 

2005 AIPCE meeting:

 

The invitation of the Luxembourg Press Council to host the 2005 AIPCE meeting was unanimously accepted.

 

Beyond 2005:

 

Frank Cullen said that Dublin, having hosted the 2001 meeting, would be happy to host it again in 2006, if by that time a Press Council were in place.

Similarly, Ognian Slatev, of the Bulgarian Media Development Centre, said the meeting could be hosted in Sofia if a Press Council were set up by that time.

Yehiel Limor extended an invitation for the meeting to be hosted by the Israeli Press Council.

Firm offers will be submitted at a latter time and the venue of the 2006 meeting will be decided upon during next years Luxembourg meeting.

 

Final remarks:

 

Several delegates made final remarks, complimenting the CMCC for the organisation and management of the meeting.

Chairman Andreas Mavrommatis summed up, thanking delegates for their presence at the meeting. He noted that it was an extremely useful session, out of which delegates came wiser. He said AIPCE should be strengthened and continued. He suggested that it would be useful if AIPCE had a basic infrastructure, a troika like coordinating body consisting of the previous, the present and next organiser of the annual meeting to act as a kind of coordination body. He further suggested that this idea could be given further consideration at next year’s meeting in Luxembourg.

 

Chairman Mavrommatis declared the meeting closed.

 

END OF THE MEETING

 

15.00

Delegates visited the House of Representatives and were received by its President, Mr Dimitris Christofias.

 

14.00

Visit to the Cyprus Museum

 

17.30

Meeting with Nicosia Mayor Michael Zambelas at the Town Hall. Visit to the Cultural Museum followed by a reception by the Mayor.

 

Saturday, October 9, 2004

 

A full day excursion for delegates was hosted by the CMCC to Paphos, with visits to archaeological sites on the way.

 

 

DETAILED PRESENTATIONS

 

 

SELF-REGULATORY MECHANICS-THE ACTIVITIES OF READERS’ EDITOR (ON SITE-OMBUDSMAN)

 

By Ian Mayes, Readers’ editor of the Guardian, President of the Organisation of News Ombudsmen

 

The system of the Readers’ Editor, or internal Ombudsman was started in the United States in the ’60s. There are about 80 News Ombudsmen world wide and most of them are in the United States.

The system was introduced in the Guardian in 1997.

What a Readers’ Editor does, is to go over, to audit the news published in the paper at a first stage, so as to make sure that there are not any breaches of the Code of Conduct and offer remedies to injured people.

A second stage auditing is done by an external Ombudsman to whom readers can apply when they feel not satisfied by the remedy offered by the Readers’ Editor.

Readers who feel offended by any publication call me to state their case and I estimated that I make about 10.000 contacts every year. Eight to ten cases every year are referred to the external Ombudsman.

In the course of my duties I publish a daily column of corrections in the paper. I also write a weekly column on ethical issues, informing the public how the paper works and what laymen can do when feeling injured. I also took on as an additional duty looking after the misuse or abuse of the English language.

A Readers’ Editor has to safeguard his total independence. This is best done though the provisions of the contract.

A successful Readers’ Editor should seek a kind of consensus with the journalists. Looking down on journalists, lecturing them and being bossy is not a productive approach.

Neither sending messages on the internal mail is the best approach. So, I make a point of making personal contact with journalists and talking with them.

My decisions on complaints made by readers are posted in the web-page of the Guardian, so that the public and the journalists as well can see the complain, along with the decision.

*************

 

SECOND DEGREE AUDITING OF PCs ACTIVITIES

 

WATCHING THE WATCHDOG-WATCHING DOG?

 

 

By Jean-Claude-Bertrand,

International Press Councils

 

 

É have been doing that for 32 years.

* And É am happy to report that there are more and more press councils:

- Over half the existing PCs have been created since 1990;

- One third since 2000.

*It has taken at least half a century, for the concept to take off. True revolutions are slow. Now it seems that the PC is no longer perceived as a threat to press freedom, but rather as a weapon to protect it.

Yet, É feel rather depressed:

- Contempt for and hostility towards PCs is still intense in many parts - and, É am sorry to say: É think

- They are partly justified.

1. There are still few PCs, even with many more democracies than before and many more media:

- less than 40 true nation-wide PCs in 174 countries,

- none in the Arab world,

- only two in Latin America,

- only three state-wide PCs for 50 United States,

- and over 20 nations belonging to the Council of Europe are without a PC- including France, Poland and Portugal.

2. While a PC is, potentially,

- the most useful "media accountability system",

- the greatest weapon in the fight for quality news media,

~the record of PCs is not impressiíe. They have rarely acquired much influence.

For instance, do newspapers serve the public better in Sweden (which has had a PC for almost a century) than in Spain (which has just started one)?

Á few years ago, É asked the councils themselves what their greatest achievement was.

Their replies were dismal : no council felt it had clearly contributed to the improvement of media.

Criticisms

Have you ever seen a book that sings the praises of PCs - apart from mine? The very few books and articles devoted to PCs normally shovel criticism upon them:

Á common criticism, in France but even more in the US, is that it is a plot by government to restrict the freedom of the press. Á PC, they say, willl fast turn into a

tribunal. Yet that never happened.

* The council is a PR operation by media owners

- to persuade Parliament not to pass restrictive laws and

- to persuade the citizens that they care about delivering good public service.

That is what you hear in the UK, for instance.

* Everywhere, critics note that the public is not aware of the PC’s existence, ever after many years of operation, or,

- if they know it exists, they do not know what it's for and,

- if they do know, they don't believe it can improve the media…

*…largely because the council has “no teeth”, lacks the power to punish. So it seems useless.

- The good media don't need it and

- the bad ones pay no attention to it.

* Better informed observers consider that the typical PC rarely has enough money to assume its functions well:

that was the verdict of two Royal Commissions' áð the Iate British Press CounciI.

* Partly, because of that lack of funds, mainly as a matter of policy, the PC does not handle the most serious cases, simply because

- complaints are not made about them and

- the PC does not monitor the media.

Now, a fundamental question needs to be asked:  is a press council nothing but a complaints processing bureau OR should it be more?

Á Complaints Processing Agency

* Endeavours to settle differences between a few individual citizens and some newspaper or broadcast station.

* If it can’t, it de bates whether the complaint was justified and publishes its opinion.

            Most present-day PCs actually are little more than complaints commissions.

 

That kind of council is set õñ by the ßndusty and/or by the profession

1- Partly to avoid costly law suits.

2- Mainly to avoid the establishment by law of some supervisory agency: as you know

very few PCs were created voluntarily: legislators first had to make threatening noises about regulating the media by law, usually under pressure from an outraged public.

Such PCs usually succeed ßn those two limited missions- BUT

- they are ignored or fiercely criticized; and

- the media are not much improved by them.

Now what about the true Press Council?

as É see it, but not just me, also such authorities

- as the 3 British Royal Commissions on the Press

- as the Hutchins Commission and the 20TH Century Fund in the US,

Á true press council takes advantage of the fact

> that it brings together and represents\

            - the people who own the power to inform,

- those who possess the talent to inform and

- those who have the right to be informed.

-> that it is a permanent institution, democratic, independent, flexible, multifunctional, harmless;

->  that its sole purpose is to improve media service to the public.

 

ÁÍD SO it can afford to do more than just settle complaints:

·         it will stand as a symbol of democracy.

 

When they participate ßn a press council,

- Owners acknowledge that their employees have a word to say ßn production.

- Journalists acknowledge that media users also have a right to make their views heard.

Á PC publicizes the fact that the news media

- are listening to the public,

- are ready to render accounts to them;

. It will strive to improve media services by

1 - monitoring the press: after all, what the press does worst is what it does not do. And the ordinary citizen most often cannot spot omissions easily.

2 - Encouraging research ïn how the news media actually function, what influence they have, what citizens need from them etc.

3 - helping to develop other M*A*S (media accountability systems). And also, of course,

4 - putting pressure ïn government not to vote laws unfavourable to the media - or to pass laws favourable.

In other words, a press council could be a wonderful weapon for media improvement, but it isn’t.

  • They are NOT likely to come from the public who knows little about the PC, and feels powerless.
  •  

Criticism will rather come from:

 

* Publishers and journalists who hate being

- watched and evaluated and

- sometimes blamed for unethical behaviour.

-* and mainly from academics (1 See David PRITCHARD (ed.), Ho/ding Media Accountable: Citizens, Ethics and the Law, Bloomington, Indiana UP, 2000) , who expect too much, tend to be disappointed: they analyse all that is wrong with PCs but have no alternatives to advocate.

It would be better if evaluation came from:

* the PC itself: it should get itself audited regularly and seek reform to improve its representativeness, its visibility, its effectiveness etc.

. Other PCs within the same country: a PC is normally set up at national level. Others should function at regional and local levels. But that does not seem realistic

. Other "media accountability systems", like the appointment by a newspaper of an ombudsman.

            M*A*S never compete: they work in different ways towards the same goal. And each should keep an eye on what the others do..

HOWEVER….

ÔÇÅ problem is not so much to watch PCsl

there is not much they can do wrong. Their problem is

ÍÏÔ that they censor or scare the media,

ÍÏÔ that they yield to unjustified pressure,

The problem, as É think É made clear, is what they DON'T DO.

That is why, as a conclusion!

É wish to express a few suggestions, that go to the root of the problem:

1. ÁÉÉ PCs should be mixed (as now most are).

2. PCs should cover all media (as 60% now do).

3. PCs should do much more to publicize their existence.

4. Áll PCs should initiate cases - hence they should - either monitor the media,

- Or arrange for an observatory (ßð a university for in- stance) to do it. That would be costly, one more reason why...

5. all PCs should be well financed. Funds should come from many sources, to insure independence:

- media companies: can be generous if scared.

- government agencies

- foundations

- public and private organisations

- unions

6. That money should finance PC activities other than processing complaints,

- like reporting ïn the news media scene;

- like commissioning research;

- like issuing public warnings ïn dangerous trends.

7. One of those "other activities" should be to help develop a loose network of accountability systems (starting with regional and local PCs) to supplement and support their work.

8. Lastly, PCs should cooperate more internationally

- to help each other,

- to promote the creation of new PCs,

esp. ßn emerging democracies (which, É am pleased to see, has begun at this conference)

- to _join forces ßn campaigning ïn important issues.

 

Á PC cannot dï its job alone: if alone, it cannot become a true instrument of media progress.

*******

 

DEVELOPMENTS ON THE EUROPEAN MARKET ABUSE DIRECTIVES

 

By Henry Manisty, of the Legal Department of Reuters

 

THE MARKET ABUSE DIRECTIVE OF 28 JANUARY 2003 (Directive 2003/6/EC-“MAD”) AND COMMISSION DIRECTIVE OF 22 DECEMBER 2003 (Directive 2003/125/EC-“MADID”)

 

GUIDANCE TO MEMBER STATES ON ASPECTS RELATING TO JOURNALISTS

 

The two directives impose obligations on anyone producing or disseminating investment recommendations. They principally target investment professionals, but some articles of both directives cover journalists as well.

 

Importantly, the directives expressly offer Member States some choices and flexibility in national implementation, including the option of self-regulation:

 

Member States should be able to choose the most appropriate way to regulate persons producing or disseminating research concerning financial instruments… or persons producing or disseminating other information recommending or suggesting investment strategy, including appropriate mechanisms for self-regulation, which should be notified to the Commission” (MAD Recital 22-emphasis added).

 

Both MAD and MADID expressly respect national press freedoms, stating that such national press freedoms will always have primacy over the texts of the directives:

 

 “This Directive respects the fundamental rights and observe the principles recognised in particular by the Charter of Fundamental Rights of the European Union and in particular Article 11 thereof and Article 10 of the European Convention of Human Rights. In this regard, this directive does not in any way prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media.” (MAD Recital 44 and MADID Recital 11-emphasis added).

 

It will always be worthwhile reminding national regulators of these two Recitals if it appears that national implementation of the directives could contravene national protections for the media.

 

The articles that most directly concern journalism are contained in MADID. MADID distinguishes between those who “produce” investment recommendations, and those who merely “disseminate” recommendations that have been “produced” by others.

 

For journalists who themselves produce investment recommendation--in other words offer share tips- MADID has 3 areas of focus:

1.                        Publicly identifying all those involved in the preparation of the recommendation (MADID article 2);

2.                        Sets standards for the “fair presentation” of recommendations (article 3); and

3.                        Sets standards for disclosure of interests and conflicts of interest (article 5).

 

MADID expressly permits Member States to exclude journalists from each of these three articles where the journalists are “subject to equivalent appropriate regulation in the Member States, including equivalent appropriate self-regulation, provided that such regulation achieves similar effects….”  (Emphasis added)

 

For journalists who merely disseminate recommendations that have been produced by others, MADID has two areas of focus:

1.                        Publicly identifying the disseminator (article 7); and

2.                        Setting standards for dissemination (article 8).

 

Article 7 is most unlikely to cause problems for the media since the name of the newspaper or other media in which the report appears should always be obvious.

 

Article 8 expressly exempts “news reporting on recommendations produced by a third party where the substance of the recommendation is not altered”.  This is an important safeguard since it is unlikely that a media news report would alter the substance of an investment recommendation. “Altering the substance” of a recommendation essentially means changing a “sell” recommendation to a “buy” or “hold” recommendation. It would be unusual for a journalist to make this kind of change.

 

However, the final paragraph of article 8 raises potential difficulties for the media. This final paragraph did not appear in the early drafts of MADID, but was added at a very late stage. European Commission officials have conceded in private that the paragraph was added without fully considering its practical implications for the media. The paragraph requires all disseminators of recommendations-- which would include the media-- to identify and publish in their reports “where the disclosures related to the source document can be directly and easily accessed by the public.”   The problem is that the media will often not have the time to verify this information, or the space available on a crowded newspaper page, to comply with this requirement. It is important, therefore, that this impractical requirement is not imposed on the media, or at least is qualified by the addition of “wherever reasonable”, so that the media will not have to implement it where it is not practical to do so.

 

CONCLUSION

 

Member States should make use of the option that MAD and MADID give them to implement the directives, as they relate to journalism, through the mechanism of media self-regulation. There are several reasons for this:

 

  • In some Member States it would be unconstitutional, or at least unprecedented, for a government agency such as a national securities commission to directly regulate the media;
  • Unless Member States opt for media self-regulation, the directives require Member States to fully apply the market abuse regime to the media. The texts of MAD and MADID are principally targeted at investment firms, not journalists. As a result, some of the provisions of MADID, which are tailored to apply to investment professionals, would cause practical problems for the media if applied literally. MADID articles 3(1) (a) and (c), for example, while appropriate for a professional analyst, will be impractical and disproportionate for the kinds of brief news reports of investment recommendations that are often carried in newspapers. Media self-regulatory mechanisms will take account of the special characteristics of the media and therefore will produce workable regimes. Workable media regimes will, in turn, ensure that the media will continue its important role in reporting financial news for their readers who are investors. If the media regime is impractical, this important contribution will be impeded, which would be contrary to the regulators’ objectives of increasing “markets transparency” for the benefit of investors;
  • Fundamental media freedoms would also be at risk if MADID is applied fully to the media. Articles 3(i) and the 4th paragraph of article 8 impose disclosure obligations in relation to “sources” of information. The disclosure of sources of information is, of course, one of the most sensitive issues for the media. For example, the definition of “recommendation” in MADID article 1 is sufficiently wide to include information from a “whistleblower” employee of a company commenting adversely on the practices or performance of the company that he works for.  In these cases, the provisions of the articles mentioned above would, if applied in full, contravene fundamental press freedoms. 
  • The expertise of national securities regulators is, of course, in the supervision of the financial services sector. They have little knowledge and experience of the separate and very different media sector.  However, knowledge and experience of the media sector is essential in order to create and operate a regime for the media that would be (1) practical for the media to operate, while also (2) delivering the “markets transparency” and “investor protection” objectives of the directives; and
  • Where necessary, existing media self-regulatory regimes can be adapted and strengthened relatively easily and quickly to deliver the objectives of the directives (indeed, it is likely that some national media self-regulatory regimes will have to be strengthened in order to reassure governments that reliance on a self-regulatory regime will be sufficient to meet the overall objectives of the directives).

 

Several Member States are now progressing the self-regulatory option. The United Kingdom is one of these.  In its June 2004 paper “UK Implementation of the EU Market Abuse Directive”, the British Treasury explained its position as follows:

 

 “The directive requires regulation of those producing and disseminating investment recommendations to ensure they present the recommendations clearly and disclose any conflicts of interests. Consistent with the directive, the government has decided that existing self-regulation will apply to journalists. This will occur where journalists are subject to certain specified of firm specific self-regulatory codes and the application of these codes is disclosed”

 

And again:

 

 “In respect of investment recommendations, member states can choose the most appropriate form of regulation to ensure compliance with the provisions. This can include self-regulatory mechanisms. Such an approach was considered necessary because the scope of the provisions extends beyond investment firms and banks. They can also apply for example to journalists making direct investment recommendations.”

 

 

POSTSCRIPT ON THE OFFENSE OF “MARKET MANIPULATION”

 

MADID lays down the rules governing the production and dissemination of investment recommendations. These MADID rules operate in all cases, and do not depend on there being any criminal purpose by the producer or disseminator.

 

By contrast, MAD article 1 governs the offence of market manipulation. Article 1(2) (c) covers the offence of dissemination of incorrect information in order to mislead investors. It contains express special safeguards for journalists since it was recognised by the EU institutions that innocent mistakes by journalists can take place in the newsroom and that such mistakes should not be regarded as market abuse.

 

It is therefore essential that national legislation implementing MAD fully incorporates the safeguards contained in MAD article 1(2) (c).

 

THE GERMAN POSITION ON MAD DIRECTIVES

 

The Press Council is against government influence of financial market reporting

 

By Lutz Tillmanns, Managing Director of the Deutscher Presserat (German Press Council)

 

The current amendments to the Securities Trade Act in Germany must not lead to restrictions on the freedom of the press. The Press Council welcomes the bill’s intended purpose to improve protection for investors and ensure the disclosure of interests in the creation of financial analyses. The national legislation became necessary in order to transform the EU-Directive on market abuse (No. 2003/6/EC, 28th January 2003) and the Commission Implementing Directive (No. 2003/125/EC, 22nd December 2003). However, the bill, which has already been passed through the Lower (on 1st July) and the Upper House of the German Parliament (24th September 2004), contains constitutionally dubious passages.

 

The official statement of reasons grants the Federal Institute for Financial Services Supervision (BaFin) extensive verification rights. This has allowed them to ‘examine the consistency of self-regulating mechanisms with European legal standards and conclude that existing self-regulation does not meet current statutory standards’. As a result, BaFin is authorised to monitor and review the compulsory registration and behaviour regulations of the press.

 

The German Press Council believes there is a risk that the authorities could start to directly control financial market reporting. Freedom of the press includes providing information and commenting on transactions in financial markets without government influence. As a result, the press supports investor protection with news coverage and analyses. It provides information about developments in the market and offers detailed background reports. This requires an independent media free of government regulation.

 

BaFin’s authority to make resolutions is in direct contravention of the principles of independent press and broadcasting services, particularly for journalism. In view of the activities of the Press Council as a self-regulatory body for the press, it is also unnecessary. The journalistic principles in the press code contain detailed regulations pertaining to this subject matter. So, for example, with respect to possible conflicts of interest, figure 7 states that it is the responsibility of the press, vis-à-vis the public, to ensure that editorial content is not influenced by the private or business interests of third parties or by journalists’ personal commercial interests.

 

Since May 2000, the Press Council’s journalistic code of conduct has sensitised journalists to insider- and other information with potential consequences for security prices. Updated Press Council  guidelines on financial market reporting are currently being prepared. In this context we attentively noticed the discussion in Britain and the PCC’s Best Practice Guidance Note for Financial Journalism from 19th March 2001. In addition to that, in Germany detailed internal codes of practice have been in existence for many years at various newspapers and magazines.

 

It is certainly worthy of recognition that the legislator has taken pains to include a special regulation for journalism. These special direction for press self regulation as a part of the act, was a result of a strong and intensive lobbying by the Press Council. But, at the same time, the press self regulation must not be undermined. As soon as the government controls institutions with voluntary self-regulation, it relativises their work. This kind of ‘super control’ does not give the press enough room for manoeuvre and, at the same time, puts a strain on the efficiency of the work carried out by the Press Council with publishers and editorial departments.

 

Effective media self-regulation makes for sensible legal policy and legislation with government control mechanisms does not. The press code of conduct, the complaints procedure set up by the Press Council and the commitment of all publishers and their editorial offices to adhere to it make the planned legislative of the Federal Institute for Financial Services Supervision’s controls superfluous.

 

Just now we are discussing two implementing measures – directives – proposed by the minister of finance. The first minister’s directive establishes detailed criteria for determining when inside information is precise and price sensitive. In addition, it specifies a series of factors to be taken into account when examining whether specific behaviour might constitute market manipulation. Additional factors can also be considered depending on the circumstances of the case.

 

The second directive establishes standards for the fair presentation of investment recommendations and the disclosure of conflicts of interest. The implementing directive makes a distinction between those producing investment recommendations (who must conform to higher standards) and those merely disseminating investment recommendation produced by a third party.

Both implementing directives doesn’t introduce the rules, including self-regulation, governing the profession of journalist. But they will influence this framework of self-regulation. This means that the very specialised sub-category of financial journalists recommending or disseminating investment recommendations would have to comply with certain general principles. However, this is subject to safeguards and allows for use of self-regulatory mechanisms to determine how these basic principles should be applied.

The press-branch in Germany recognized the relevance of this subject. Now an expert-commission of the Press Council is planning an extension of the press code. So we’re very interested to hear about your experiences.

***********

RESOLUTION OF THE MEETING ON THE MAD-MADID DIRECTIVES

 

The meeting resolved that the Luxembourg Press Council, which will be hosting the next AIPCE meeting, will arrange a meeting for the AIPCE with Commissioner for Information, Society and Media Viviane Reding, (Luxembourg) to explain the vital work of Press Councils and to request her assistance in ensuring that new EU Legislation does not undermine this work.

 

THE CAROLINE CASE

The ‘Caroline’ case at the European Court of Human Rights as viewed by the German Press Council

 

By Lutz Tillmanns, lawyer and Managing Director of the Deutscher Presserat

 

In the last ten years, Princess Caroline of Hannover, née Monaco, has been more committed to extending personality protection from the media than any other person. Supported by her lawyer Matthias Prinz, who has since become equally prominent, she has now been able to prohibit any reporting of her private life, in particular in the yellow press, as a result of the judgment by the European Court of Human Rights (ECHR) from 24th June 2004. What were the reasons for the decision? What was the legal basis? What consequences arise from the Strasbourg judgment for Germany and possibly for other European countries? And finally: How is this law suit viewed by the German Press Council? I will attempt to offer brief and subjective answers to these questions.

 

II.                 The facts of the case

 

The legal arguments have been going on now for eleven and a half year. They refer to relatively ordinary circumstances. The case is centred on the legitimacy of publishing photographs of the Princess’ private life. The photos were taken in the course of public appearances, such as playing tennis, riding, shopping, at the restaurant and at the beach club.

  

The photos and accompanying articles were published in mid-1993 and at the beginning of 1997 in the German magazines, Bunte and Freizeitrevue. The ECHR has expressly not dealt with:

 

·         Cases of incorrect reporting

·         Publications which have already been filtered out by German courts, i.e. pictures of Caroline with her children

·         The legitimacy of the circumstances in which the photos were taken, i.e. using so-called paparazzi methods

 

III.               The history of the case

 

There have been numerous decisions made by German courts on the law suits. Finally, on 15th December 1999 the Federal Constitutional Court in Karlsruhe was to decide on the interpretation of basic rights by the highest German civil court (Federal Court of Justice, judgment from 19th December 1995) as part of a constitutional complaint – submitted by Caroline von Hannover. The Federal Constitutional Court considered the issues of general personality rights and the freedom of the press. The interpretation of these basic rights (article 2, paragraph 1, in conjunction with article 1, paragraph 1 of the German Basic Law) by the court resulted in photos showing Caroline with her children being deemed unacceptable. In 1999, the court referred to the special need for protecting children. At the same time, the German judge also found that the Princess herself was a contemporary ‘public figure’, and as such must accept the publication of photographs showing her in public places. Caroline von Hannover launched an appeal against this judgment at the Strasbourg ECHR in 2000.

 

IV.               The legal foundation

 

Article 8, paragraph 1 of the European Convention of Human Rights protects private and family life. However, article 10 of the Convention guarantees the right to freedom of expression, which – although not expressly mentioned – certainly includes the freedom of the press.

 

On the subject of private life, the European Court of Human Rights also deemed this to include the uninterrupted development of the personality and the relationship to other people. This also certainly includes contact with other people, where it occurs in public.

 

According to the court, protected private life includes the right to control the use of one’s photo/image. Consequently, the ECHR came to the conclusion that the publication of the photographs in question came under the application of the right to protection of one’s private life.

 

Legal experts recognise that the words of the corresponding judgments from the European Convention of Human Rights and the German constitution are not identical, but that their sense is. According to the Convention, it is up to the national courts to strike a fair balance between both legal merits by carefully weighing up the concerns of personality protection and the freedom of the press, at their discretion.  The differences between the decisions made by the Federal Constitutional Court and the ECHR refer less to their legal foundations but rather to the assessments made by the courts.

 

In 1999, the Federal Constitutional Court also affirmed an encroachment of the general personal rights of the complainant, in principle, but with significantly different reasoning. The Court also came to a different conclusion in its weighing up of the case. The ECHR has now admonished the German Constitutional Court for showing a lack of ‘balance’ for the different concerns involved.

 

V.                  Details of the Court's considering of legal merits

 

The Federal Constitutional Court concluded that the previous civil courts had acted constitutionally in applying and interpreting legal stipulations contained in §§ 22 and 23 of the Kunsturhebergesetz (Law on Copyright in Arts). That judgment emphasised that protecting the freedom of the press was not only limited to political areas but also included pure entertainment. When weighing up conflicting personal rights, it is a case of deciding, “whether public issues are seriously and factually discussed or whether they are merely private affairs which satisfy curiosity”.

 

The ECHR has overruled the arguments put forward by the Federal Constitutional Court on almost all points. Strasbourg has called for the strict differentiation between reports about facts contributing to an official debate in a democratic society and reports about the private lives of persons with no official role. Caroline von Hannover falls under the latter category. According to the ECHR, the photographs in question served only to satisfy the curiosity of readers. They made no contribution whatsoever to a debate of general social interest and were, therefore, only subject to limited protection in terms of freedom of the press.

 

As a result, the ECHR’s judgement expressly contradicts the Karlsruhe court’s principal refusal to differentiate between information and entertainment. In particular, the ECHR criticised the term ‘contemporary public figure’, as defined by the German courts according to § 23, paragraph 1, no. 1 of the Kunsturhebergesetz (Law on Copyright in Arts). Furthermore, it cast doubt on the selectivity of differentiating between ‘contemporary public figure’ and ‘relatively public figures’. Lastly, the criterion of spatial seclusion was deemed too vague to pronounce a reliable judgment for those involved.

 

VI.               The outcome

 

The ECHR came to the conclusion that the German courts had violated the right to respect for private life in weighing up the conflicting interests. This applied to all photographs and accompanying texts examined by it. A decision was not made about the application for fair compensation according to article 41 of the European Convention on Human Rights.

 

The Federal Republic of Germany may appeal against the Chamber’s decision within three months. It would then have to apply for the case to be referred to the Great Chamber in Strasbourg (article 43, paragraph 1 of the European Convention on Human Rights). Following a fierce political debate in Germany, in which the press and broadcasting associations, a big group of chief editors and the German Press Council were also involved, the German federal government refused to submit an appeal. It is also worth mentioning here that Gerhard Schröder, the Federal Chancellor and Joschka Fischer, the Foreign Minister, both decided against submitting an appeal.

 

VII.             Legal consequences and effects of the judgment

 

The judgment from 24th June 2004 established a breach of contract by the German courts in these cases. According to article 46, paragraph 2 of the European Convention on Human Rights, the Federal Republic of Germany is obligated to comply with final judgments made by the Court, as a member of the European Council. Furthermore, German courts must adhere to the legal force/to res judicata of an ECHR’ judgment. However, the Strasbourg decision has no nullifying effect on the legal validity of the German judgment. In addition, experts are undecided as to whether and to what degree this obligation includes the case decided on by the ECHR and the parties involved.

 

Nevertheless, the German Press Council believes that the direct consequences of the Strasbourg judgment should not be underestimated. It will have repercussions for similar cases. According to jurisprudence, it is assumed that a state judged by the ECHR must prevent comparable breaches of the Convention in parallel cases affecting completely different people. This means that legislators are primarily obligated to act. And this is when the dilemma becomes apparent.

 

VIII.          Appraisal by the German Press Council

 

The German Press Council believes the judgment will also fundamentally endanger political reporting. It is not the job of the Press Council to defend the publication of these photographs in the yellow press. However, the ECHR judgment poses grave uncertainties for practical journalism. The ECHR judgment from 24th June 2004 will, for the time being, supersede a different adjudication by the Federal Constitutional Court. For years, this adjudication has contained terms such as ‘contemporary public figure’ and ‘relatively public figures’. In our opinion, superseding these terms with very general new terms will endanger political reporting.  In future, the individual journalist will not know precisely how far private protection will apply to politicians or politically active persons. There are also continuing concerns that there will be a subsequent need to improve the system of  German personal rights including the scope of the freedom of the press.

 

The Press Council has also pointed out that the protection of personal rights in Germany is not only guaranteed at the highest judicial level. Self-regulation is often called upon and also plays a vital role in this area. Ethical standards established by journalists and publishers as well as the comprehensive practice of the Press Council judgments ensure a balanced protection of personal rights. This system of voluntary self-regulation must certainly be strengthened in the future.

 

IX.               Borderline cases

 

In conclusion, I would like to present some realistic practical cases that illustrate the problems associated with the judgment when reporting on prominent people.

 

·         Caroline von Hannover is standing on Red Square in Moscow (private situation?)

·         Caroline buys a fur coat (contribution to the public debate on whether buying fur clothing is ethical?)

·         Prominent German goalkeeper, Oliver Kahn, meets a female friend outside the football stadium (?)

·         The musician/entertainer, Dieter Bohlen, is found drunk in a hotel bar

(If the photo illustrates an article on alcohol abuse, would this issue be acceptable?)

·         German Foreign Minister, Joschka Fischer, seen walking through Berlin with an unknown woman

·         German Environment Minister, Jürgen Trittin buys a non-recyclable bottle or German Economics and Labour Minister, Wolfgang Clement, employs a cleaning lady for less than minimum wage

(politically inconsistent behaviour and private scandals continue to be documented among officials)

·         Defence Minister, Peter Struck, visits a lung clinic (can the health of a minister be documented, if he stated publicly that he only had a cough?)

·         The chairpersons of the opposition parties, Angela Merkel and Edmund Stoiber whispering together in a cosy wine bar (is this a secluded place?)

 

CHAMBER JUDGMENT IN THE CASE OF VON HANNOVER v. GERMANY

(Press Release)

 

The European Court of Human Rights has delivered at a public hearing a judgment [1][1] in the case of von Hannover v. Germany (application no. 59320/00).

 

The Court held unanimously:

 

  • that there had been a violation of Article 8 of the European Convention on Human Rights (right to respect for private life);
  • that the question of the application of Article 41 of the Convention (just satisfaction) was not ready for determination. It reserved it in its entirety and invited the Government and the applicant to submit observations in writing.

 

The judgment is available in French (original version) and English (translation).

 

1.  Principal facts

 

The applicant, Princess Caroline von Hannover, was born in 1957 and is the eldest daughter of Prince Rainier III of Monaco. She is a national of Monaco, where she lives.

 

Summary of the facts

 

Since the beginning of the 1990s Princess Caroline von Hannover has been campaigning – often through the courts – in various European countries to prevent photographs about her private life being published in the sensationalist press.

 

She has on several occasions unsuccessfully applied to the German courts for an injunction preventing any further publication of a series of photographs which had appeared in the 1990s in the German magazines Bunte, Freizeit Revue and Neue Post. She claimed that they infringed her right to protection of her private life and her right to control the use of her image.

 

In a landmark judgment of 15 December 1999 the Federal Constitutional Court granted the applicant’s injunction regarding the photographs in which she appeared with her children on the ground that their need for protection of their intimacy was greater than that of adults.

 

However, the Constitutional Court considered that the applicant, who was undeniably a contemporary “public figure”, had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her official duties. The Constitutional Court referred in that connection to the freedom of the press and to the public’s legitimate interest in knowing how such a person generally behaved in public.

 

2.  Procedure and composition of the Court

 

The application was lodged on 6 June 2000 and declared admissible on 8 July 2003.

 

On 16 and 26 September 2003 the President of the Chamber gave leave under Rule 61 § 3 of the Rules of Court to the Association of German Magazine Publishers (Verband deutscher Zeitschriftenverleger) and a company, Hubert Burda Media Holding GmbH & Co. KG, to submit written observations as third parties.

 

 

3.  Summary of the judgment[2]

 

Complaint

 

The applicant maintained that the decisions of the German courts infringed her right to respect for her private life, as guaranteed by Article 8 of the Convention, since they failed to afford her adequate protection from the publication of photographs taken without her knowledge by paparazzi on the ground that, in view of her origins, she was undeniably a contemporary “public figure”. She also complained of an infringement of her right to respect for her family life.

 

Decision of the Court

 

The Court noted at the outset that certain photographs of the applicant with her children or in the company of an actor at the far end of a restaurant courtyard were no longer the subject of the application, as the Federal Court of Justice had prohibited any further publication of them on the ground that they infringed the applicant’s right to respect for her private life.

 

There was no doubt that the publication by various German magazines of photographs of the applicant in her daily life either on her own or with other people fell within the scope of her private life. Article 8 of the Convention was accordingly applicable. It was therefore necessary to balance protection of the applicant’s private life against freedom of expression, as guaranteed by Article 10 of the Convention.

 

Although freedom of expression also extended to the publication of photographs, this was an area in which the protection of the rights and reputation of others took on particular importance, as it did not concern the dissemination of “ideas”, but of images containing very personal or even intimate “information” about an individual. Furthermore, photos appearing in the tabloid press were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution.

 

The Court considered that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photographs and articles made to a debate of general interest. In the case before it, the photographs showed Caroline von Hannover in scenes from her daily life, and thus engaged in activities of a purely private nature. The Court noted in that connection the circumstances in which the photographs had been taken: without the applicant’s knowledge or consent and, in some instances, in secret. It was clear that they made no contribution to a debate of public interest, since the applicant exercised no official function and the photographs and articles related exclusively to details of her private life.

 

Furthermore, while the general public might have a right to information, including, in special circumstances, on the private life of public figures, they did not have such a right in this instance. The Court considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. Even if such a public interest existed, just as there was a commercial interest for the magazines to publish the photographs and articles, those interests had, in the Court’s view, to yield to the applicant’s right to the effective protection of her private life.

 

The Court reiterated the fundamental importance of protecting private life from the point of view of the development of every human being’s personality and said that everyone, including people known to the public, had to have a “legitimate expectation” that his or her private life would be protected. The criteria that had been established by the domestic courts for distinguishing a figure of contemporary society “par excellence” from a relatively public figure were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a “legitimate expectation” that her private life would be protected.

 

Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considered that the German courts had not struck a fair balance between the competing interests. Accordingly, it held that there had been a violation of Article 8 of the Convention and that it was not necessary to rule on the applicant’s complaint relating to her right to respect for her family life.

 

Judges Cabral Barreto and Zupančič expressed concurring opinions, which are annexed to the judgment.

 

***

 

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

 

Registry of the European Court of Human Rights
F – 67075
Strasbourg Cedex
Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
                            Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
                            Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54)
Fax: +00 33 (0)3 88 41 27 91

 

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. More detailed information about the Court and its activities can be found on its Internet site.


 

ARTICLE 19 ON THE CAROLINE CASE

Following the discussions on the Princess Caroline, Sara Buchanan, representing ARTICLE 19, sent to participants at the AIPCE meeting the following letter, concerning a legal view on the case:

“Dear colleagues,

 It was very nice to meet you all in Cyprus. Following from the discussion on the Princess Caroline case, I asked our legal team here at ARTICLE 19 about the significance of the case for media scrutiny of those in public life and in particular politicians and public officials, whom the European Court has repeatedly stated enjoy a lower threshold of privacy.

The Director of our Law Programme, Toby Mendel wrote the following comments in a recent piece for the IViR (Institute for Information Law) and stressed it is  important to judge the case on the details of what the decision says rather than entirely by the outcome. We will be briefing the case in more detail shortly so I will send the brief to you as well when it is available.  

Extract:

  A recent decision by the European Court of Human Rights, Von Hannover v. Germany, sets out a number of clear rules in this area. That case involved a number of photos of Princes Caroline of Monaco, for example riding on horseback, on a skiing holiday and tripping over something on a private beach. The Court stated:

 In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest.[1][1]

 The Court also stipulated:

 The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.[2][2]

 The domestic courts held that Princess Caroline was a figure of contemporary society “par excellence” and therefore had no right to privacy unless she was in a secluded place out of the public eye. This standard might be applicable to politicians exercising official functions, but was not applicable in the present case. As the Court noted in relation to the applicant, “the interest of the general public and the press is based solely on her membership of a reigning family whereas she herself does not exercise any official functions.”[3][3]

 It is interesting to note that the Court appeared to be prepared to allow wide latitude, even to photos, which made some contribution to debate on a matter of public interest. The complete lack of such contribution in the present case – perhaps best exemplified by the photo of Princess Caroline tripping on the beach – mandated the particular conclusion reached.”

*********

DISCUSSION ON THE DESIRABILITY (OR NOT) OF HAVING PCs ESTABLISHED BY LAW OR THEIR EXISTENCE REGOGNISED BY LAW

 

 

After the discourses on the Russian and Western European experience in establishing  new PCs a discussion followed on the desiarablity, or not, of having PCs established by Law or their existence recognised by law.

Frank Cullen, of the National Newspaper of Ireland, reported on developments in Ireland, where a law is being drafted for the establishment of a Press Council. Under the law, a court has to take into consideration the existence of the Press Council (see Irish national report).

Tim Toullmin, Director of the UK Press Complaints Commission noted that once the Code is referred to in the law, one does not know where it stops.

William Gore, assistant director of the UK Press Complaints Commission, noted that it can be possible for a Press Council that has been established by law to work effectively.  The question is whether the Council is seen to be impartial or not – and a legal basis can have a major bearing on that question.

Finn Rowold, of the Danish Press Council said that one has to look what the situation is in each individual country.

Boris Navasardian, President of the Yerevan Press Club, said that the setting up a Press Council by law is undesirable, as it may become an instrument in the hands of the Government.

David Chipp, International Consultant of the UK Press Complaints Commission, reported on the recent setting up of Press Council in Sri Lanka. There, the PC was established voluntarily on the initiative of the industry.

Andreas Mavrommatis, chairman of the Cyprus Media complaints Commission, said that in setting up a statutory PC, there is a danger of government manipulation.

Jean-Claude Bertrand, of the IPC, noted that there is nothing wrong in have Press Councils established by Law, or their existence recognised by Law, as long as they function independently and they seem to do so.

 

*******

 

 

HOW TO TREAT COMPLAINTS AGAINST PUBLICATIONS PUBLISHED IN A LANGUAGE OTHER THAN THE INDIGENOUS LANGUAGE

 

The question of how to treat complaints against publications that are published in a language other than the indigenous language or languages was discussed.

The question had been raised by the Swedish Press Council. The Council President, judge Johan Hirschfeldt reported on a case of such a publication being examined by the Swedish Council, which had given rise to the matter.

Lutz Tillmanns said the practice in Germany is to call an expert to give the cultural background of the country. Most such cases in Germany are related to publications in Turkish.

There was a consensus that in examining such complaints a sound translation of the publication in the indigenous language is needed and the cultural background of the people involved should be taken into consideration.

Andreas Mavrommatis, Chairman of the CMCC noted that as a matter of equality, assistance should be given to people not having the means to have a translation of the publication.

 

*********

 

CASE STUDY

 

 

Willian Gore of the British PCC reported on a complain concerning a story in a local paper in Wales, saying that a Porth pensioner who died alone in his house had been partially eaten by his own dog.

His sister complained about insensitive reporting (Intrusion into grief).

 

COMPLAINT

É enclose a copy of a newspaper article which appeared in the Rhondda “Leader” on Jan 15th 2004. My husband had telephoned your office prior to the publication as we had been informed that the press were trying to obtain information concerning my brother’s death. We were informed that you were unable to take any action before the article was published hence É am contacting you now

I find the article distressing and sensationalist and for it to appear at a time of grief and mourning for myself and my family is unacceptable. Had we been asked permission for such an article to be published we would have categorically refused.

É don't know what your views are about this article but É hoñe that they coincide with mine and that you will take up the matter with the parties concerned.

Yours Sincerely

Mrs Dorothy A. Yeoman

 

 

ADJUDICATION

Mrs Dorothy Yeoman. Of London W1, complained to the Press Complaints Commission that an article published in the Rhondda Leader, on 15th January 2004 headlined "Starving pet starts to devour pensioner” was insensitive at a time of grief in breach of Clause 5 (Intrusion into grief) of the Code.

The complaint was upheld.

The article reported the recent death of a man, who had collapsed ßn his home. His sister complained that the article was distressing and included unnecessary sensationalist details.

The newspaper appreciated that the complainant was obviously distressed by her brother’s death. However, it said that its enquiries - which were based on information provided by member of the public and then confirmed by two sources - were made with sympathy at discretion. Given the unusual circumstances of the case, it would have been easy to publish a sensationalised article, but the newspaper believed that the construction of the story and its headline had been handled sympathetically and with appropriate sensitivity.

Adjudication

The protection of the vulnerable is at the heart ï! the Code of Practice - and the Commission recognises that close relatives of deceased people are particularly vulnerable in the immediate aftermath of a death. That is why Clause 5 relates both to the manner in which news is gathered and to the publication of the news, requiring that newspapers handle stories “sensitively” at such times.

Any judgement about whether such pieces are sufficiently sensitive will inevitably be subjective to some degree, but the Commission felt in this case that the overall tone of the article and the gratuitous inclusion of some of the detail resulted in a breach of the Code. In  upholding the complaint, the Commission bore in mind that the article had been written shortly after the dead- and before the funeral- and that the details had not been officially put into the public domain, for example as a result of an inquest.

Relevant Precedents: Thornhill v News and Star, Report 55, Harvey v Rochdale Observer, Report 45, Head v Luton on Sunday, Report 42

 

******

 

SHOULD WE BECOME AIPCW?

 

The suggestion was put that AIPCE might widen its scope and expand outside Europe.

Fernand Weides, Vice-Chairman of the Luxembourg Press Council said that it is important that AIPCE remains European.

Claude-Jean Bertrand pointed out that at time when the “World Association of Press Councils” disintegrates, it would be beneficial if AIPCE expanded and took up the mission of cooperating or assisting in new Press Councils being established. He pointed out that of about 75-80 Press Councils world-wide, half of them are situated in Europe.

Peter Studer, President of the Swiss Press Councils said that AIPCE has to have criteria as to who comes in.

Andreas Mavrommatis, Chairman of the CMCC said that it is too early to expand. Criteria and procedures have to be set but AIPCE could accept observers from non-members.

Robert Pinker, International Adviser to the UK Press Complaints Commission consented to the remarks by Mr. Mavrommatis.

Boris Navasardian, President of the Yeravan Press Club said that AIPCE should not be limited to the EU countries, but it should expand to include the area of the Council of Europe, since all CoE countries, including Armenia, are committed to similar standards regarding the media. In the absence of an application from a non-European PC or other self-regulation body it was not appropriate to discuss the issue.

 

The suggestion did not pass, but the matter was left open for future discussion.

 

**********

THE CYPRUS AIPCE MEETING

 

Article by Ian Mayes[3] in the Guardian

 

Last week I went to the annual huddle of the Alliance of Independent Press Councils of Europe (AIPCE) to speak about the still fairly rare form of self-regulation that we try to practise at the Guardian. I was invited by the hosts, the Cyprus Media Complaints Commission, and we met in the divided city of Nicosia.

Unless you are involved in the self-regulation of the press you are unlikely to have heard of the AIPCE, a useful and, deliberately, fairly informal association of self-regulation bodies that began meeting about six years ago at the joint suggestion of the British Press Complaints Commission and its counterpart in the Netherlands.

In the relatively short period that it has been in existence, it has become a major forum for exchanging ideas, sharing experience, and in particular, most recently, for the support and encouragement of the press councils that are emerging in eastern Europe - in the former Soviet Union, in former Yugoslavia, and in countries such as Bulgaria. Half of the independent press councils in the world have been formed since 1990, and a third since 2000. The growth among members of the European alliance reflects that pattern.

The new European members have found among their colleagues in the older established bodies - such as the PCC in
Britain - a ready response to requests for help and advice. The PCC has, in fact, provided consultative services since not long after its foundation in 1991. An assistant director, William Gore, coordinates its work overseas. He says: "It is important for us to get involved when and where we are wanted, if our help is sought." The director of the PCC, Tim Toullmin, is keen on this work, like his predecessor, Guy Black.

The PCC has had a direct involvement in, for example, the establishment of a press council in Bosnia-Herzegovina where it went, initially, at the invitation of a European commission agency there. The former acting chairman of the PCC, Professor Robert Pinker, having gone there as a consultant, became the first international chairman of the Bosnian press council, a post to which he expects a Bosnian to be elected in May next year.

Prof Pinker told me, "The Bosnian press council could not have started under more difficult circumstances. Now it is fair to call it one of the truly national bodies. We are in the process of extending the range of members to make it even more representative."

The PCC has also been quick to put its experience, on request, at the disposal of projects initiated by others. I have personal experience of one of these, a programme to establish press and media councils in two pilot schemes in
Russia, one in Nizhny Novgorod, to the east of Moscow, and the other in the south at Rostov-on-Don. I visited both places with PPC representatives when the project was just beginning.

The guiding hand has been provided by the Programme in Comparative Media Law and Policy at
Oxford University. It has worked with the Moscow Media Law and Policy Institute and local people over the past three years and - as the Russian delegates reported at the Cyprus conference - the scheme is now showing positive signs of success. I hope to report on that more fully later this year.

The problems faced by the media in this and other areas represented at the conference are daunting. There is something chastening to see the dedication and courage being brought to the task of trying to develop and protect a press free from state interference and corruption. These efforts are often taking place in a context in which there is no tradition of the principal elements in society even meeting and talking, let alone trusting each other.

The key requirement that any press council must fulfil to be worthy of the name, in the opinion of members of the European alliance, is independence - it needs great effort in many countries to carry it beyond aspiration.

Delegates in Cyprus came from, among other places, Albania, Armenia, Azerbaijan, Bulgaria, Estonia, Georgia, Ukraine, and, as I have already mentioned, Russia and Bosnia. The struggle they are involved in provides a reminder that self-regulation, with the long and often difficult process of agreeing an editorial code that usually precedes it, promotes and protects a free press against repression. It is easy to forget this as we pick over the imperfections of our own system.

 

 

 



[1][1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17‑member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

[2] Judge elected in respect of Liechtenstein.
[1][3] This summary by the Registry does not bind the Court.

[2] Judgment was given by a Chamber of 7 judges, composed as follows:

 

Ireneu  Cabral Barreto (Portuguese), President,
Georg               Ress (German),
Lucius               Caflisch (Swiss),
Riza                  Türmen (Turkish),
Bo
štjan             Zupančič (Slovenian),
John                 Hedigan (Irish),
Kristaq              Traja   (Albanian), judges,

and also Vincent Berger, Section Registrar.

 

3. Ian Mayes is the Readers’ Editor of the Guardian (internal Ombudsman) and vice-president of the Organisation of News Ombudsmen