Media coverage of sensitive matters

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5.1       Can the media may be subject to restrictions on the grounds that the subject-matter of what they propose to cover is sensitive?

Yes.  There are a number of areas where the law, in most countries, deems it necessary for the media to be subjected to restraints on this ground.  These include:

·       coverage of, or comment on, legal proceedings involving sexual offences;

·       coverage of, or comment on, offences committed by, or on, children and young persons;

·       coverage of, or comment on, issues or events involving racial, religious, ethnic, linguistic or other similar overtones in circumstances where they would lead to public disorder;

·      coverage of, or comment on, family law cases, e.g. cases involving divorce or separation, wardship, and adoption.

 

5.2       Would a blanket ban on coverage or comment in such areas be justified?        

Normally not.  The importance of free speech and the freedom of broadcasters to inform their viewing and listening public require that only the barest minimum restrictions are imposed.  However, much will depend on the nature of the society in question and the circumstances prevailing at the time the restrictions are sought to be imposed.  For example, if in a given country there is a serious risk of large-scale violence arising from a heightened state of tension between different racial or religious groups, the state may be justified in requiring the media to refrain from publishing material that may exacerbate that tension, even if the material in question would be seen as falling within the acceptable limits of free speech in normal times.

The test that is normally used to assess the appropriateness of restrictions in this area is whether the material in question is likely, having regard to all the circumstances, to lead to violence and/or large-scale disruption to the life of the community.  Courts in many countries have insisted that any measures which are adopted are proportional to the dangers sought to be averted.  The European Court of Human Rights has also used the test of ‘pressing social need’, which it has said, involves showing that any interference with a right was necessary in a democratic society.  This presupposed a regard for “pluralism, tolerance and broadmindedness”, argued the court.[1]

However, standards in this area differ from country to country.  It is worth remembering in particular that the norms laid down under the European Convention on Human Rights do not apply to Asian countries because the Convention does not apply to such countries (although the courts in some Asian countries have shown a willingness to apply those norms).

 

Sexual offences

 

5.3       What is the general approach of the law in relation to media reporting of sexual offences?

In most countries, the law gives victims of sexual offences the right to remain anonymous.  This means that such a person cannot be named or otherwise identified by the media in any of its reports.  The rationale for this restriction is that there is still a stigma attached in most societies to being subjected to a sexual attack. 

 

5.4       How extensive is the ban on the identification of victims of sexual offences?

This differs from country to country.  Generally speaking, victims of sexual offences enjoy lifelong anonymity.  This means that no one – including the media – can say or do anything which will result in the identification of such a person till his or her death.  There are, however, exceptions to this rule which are noted below.

Doubts can occasionally arise about when the ban on identification begins.  The law in some countries (e.g. the UK) is explicit that the ban takes effect from the time the person in question makes a complaint about the alleged offence.  If the law is not so clear, the media would have to make the necessary enquiries to ascertain the exact starting point for the ban.

 

5.5       What about identification of the alleged perpetrator of a sexual offence?

There is usually an asymmetry in the law concerning comment on cases involving sexual offences.  In most countries, the law does not prohibit the media from identifying the alleged perpetrator of a sexual offence.  This has led to complaints of unfairness from equality campaigners and defendants in sexual cases who argue that, even where a person is eventually acquitted of all charges, his reputation suffers serious, sometimes irreparable, damage while his accuser continues to enjoy anonymity for life.

Such complaints have frequently led to calls for reform of the law, with the preferred option being to allow both the accuser and the accused anonymity until the end of the criminal trial and, in the event of an acquittal, for the rest of their lives.  However, in the absence of any such change in the law, the media are left with the option of either acting in conformity with the existing provisions or, on a voluntary basis, refraining from naming or otherwise identifying defendants in sexual cases until they are formally convicted in a court of law.

 

5.6       Are there any exceptions to the rule against naming victims of sexual offences?

Yes, generally speaking, the media would be allowed to name or otherwise identify victims of sexual offences in certain circumstances.  These include the following:

(a) where the person concerned has himself or herself allowed for the anonymity to be lifted: occasionally, the victim of a sexual offence may want to have their identity revealed, for example to lend their names to a public campaign against rape or other evils.  In such circumstances, the media can name the victim.  It is, however, a good idea for journalists in such circumstances to ensure that the person in question gives his or her consent unequivocally and in writing, so that there is not dispute later about whether consent had actually been given.  The laws of some countries (e.g. the UK) also require that, where consent for being named is sought by the media, no person involved in seeking the consent unreasonably interferes with the peace or comfort of the victim.

(b) where the court orders the anonymity to be lifted, usually on the grounds that, to do otherwise would impose a substantial and unreasonable restriction on the reporting of the criminal trial for the sexual offence in question. The court may also order the anonymity to be lifted on an application by the defendant’s lawyer, for example on the grounds that only by revealing the identity of the complainant will certain witnesses who are crucial to the defence come forward to give evidence in court.

It is always a good idea for journalists to check with the court whether, and to what extent, the anonymity of a victim has been removed before he or she is named or otherwise identified.

 

5.7       What about ‘jigsaw’ identification of victims of sexual offences?

This is a risk which the media should avoid.  ‘Jigsaw’ or ‘patchwork’ identification involves one newspaper or media outlet giving certain details about a rape victim without naming him or her, and another paper giving certain other details about the person (also without naming him or her), with the result that, when the emerging details are pieced together, a discerning reader would be able to make out the identity of the victim.  The only way in which this problem can be avoided is through close co-operation between newspapers and broadcasting organisations in the coverage of such cases.  In many countries, media outlets have an agreed approach for the reporting of sexual offences.

 

5.8       Does the anonymity rule apply to civil cases involving sexual offences?

Generally speaking, yes.  Where, for example, the victim of a sexual offence sues his or her attacker for damages, or where he or she is involved in a case before a tribunal, the media are not allowed to publish anything that might reveal the his or her identity.

 

5.9       What are the sexual offences covered by the anonymity rule?

Usually, rape, attempted rape, incest, and indecent assault are covered by the rule.  However, national laws vary in this area: in some countries, there is a longer list of offences, so it would be worthwhile for journalists to make closer enquiries before reporting on such offences.  The media would also do well to check on whether male or homosexual rape is included in the list of offences to which the anonymity rule applies, as practice in this area varies between countries.

 

Coverage of matters involving children or young persons

 

5.10     How does the law deal with media coverage of matters involving children or young persons?

Generally speaking, the law is protective of children and young persons.  Such an approach is justified on the grounds that children being vulnerable, their privacy must be carefully protected and public institutions (including the courts) should have constant regard for their welfare.

 

5.11     How is a ‘child’ or ‘young person’ defined in law?

There is some variation in this area between countries.  A typical law would define a ‘child’ as someone under the age of 14 years and a ‘young person’ as someone between the ages of 14 and 18 years. 

 

5.12     Can a child be held responsible for a criminal offence and punished by a court of law?

Yes, although different countries have different ages at which children can be charged with criminal offences.  Typically, a child cannot be so charged unless he or she is at least 10 years of age.  This is because anyone under that age is deemed “incapable of crime” (doli incapax).  Where a child or young person is charged with an offence, he is usually brought before a juvenile court or youth court, and there are reporting restrictions on proceedings before such courts.

 

5.13     What may the media report in relation to proceedings involving children and young persons?

There are, potentially, a number of restrictions that the media may be subject to in this area, depending on the laws of individual countries.  Generally speaking, juvenile courts and youth courts do not allow the public the same degree of access as adult courts – in many countries, the public (except those intimately connected with a case) are prohibited from entering these courts.  Journalists may, however, be allowed to enter and remain present during proceedings, although they may only report certain matters.  They are, in particular, usually prohibited from publishing the name, address, school details or other information which may lead to the identification of the child or young person involved in the proceedings.  Where such a prohibition exists, no media outlet should, of course, publish any photograph or sketch of the child or young person.

The reporting of juvenile court proceedings calls for great care.  While it would be alright to describe a defendant as, say, a ’15-year-old disabled Bangkok boy’ (because Bangkok is a large city), a report that the defendant was a 15-year-old disabled boy from a small village in rural Thailand might prove problematic (because many people who knew the village and its inhabitants could easily identify the boy in question).

 

5.14     Are there any circumstances under which a child or young person involved in criminal proceedings is allowed to be identified?

Yes.  Occasionally, the court may order that the child or young person be named to avoid injustice to him or her, or where there was a strong public interest in the identity of the child being revealed.  This happened in a notorious case in the UK where two young boys, Jon Venables and Robert Thompson, were tried and convicted of the murder of a 2-year-old toddler, James Bulger, in 1993.  Given the horrific nature of the crime, the court unusually ordered that the two murderers be named, although they were only between 12-14 years of age.

Yet another circumstance under which a child or young person may be named in the media is when he or she is either suspected of, or charged with, a serious offence and has absconded.

 

5.15     What is the position concerning young persons being tried for offences in adult courts?

Occasionally, a juvenile may be charged with an offence for which he or she is tried in an adult court.  In such cases, there is usually no automatic ban on the identification of the juvenile by the media.  However, it is possible for the court to impose a ban, in which case the media should be careful not to breach it.

In many countries, the discretion of the court in imposing such a ban is circumscribed by a requirement that it should carry out a balancing exercise between the needs of open justice and the need to protect the juvenile from undue public exposure.  Where the media feel that this balancing act has not been carried out properly, it would be well within its rights to ask the court – or a higher court – to review the order.

 

5.16     What about cases in adult courts that may involve children as victims?

As a rule, where an adult is charged with an offence involving children as victims, there is no prohibition on the identification of the adult.  However, there is an important caveat.  The media should not publish anything that might identify the children, even indirectly. So, where a case involves incest, for example, the media should not name the adult defendant (e.g. the father) who is facing trial, because that will easily lead to the identification of the child victim.

 

5.17     Can any reporting restrictions made in relation to children involved in legal proceedings continue after they have become adults?

Generally speaking, no.  However, the courts may, exceptionally, allow for the restrictions to continue indefinitely.  Two examples from the UK are illustrative.  In the first, a judge ruled in 1984 that Mary Bell, who had been found guilty of murder when still a child, should not be identified even after she became an adult.  A similar ban was placed on the identification of a child which had subsequently been born to Mary.  The intention here was to protect the child, not Mary herself.

In the second case, decided in 2001, a judge ruled that Jon Venables and Robert Thompson, who had killed the toddler James Bulger when they were still children, should both be shielded from publicity even after they had become adults, because there was a real risk that, otherwise, they would be subjected to revenge attacks by members of the public.  This decision was criticised for being too sweeping and highly restrictive of the media’s freedom of expression, but it continues to be in force.

 

5.18     What happens where an adult involved in criminal proceedings ask for anonymity on the grounds that his or her children’s privacy need to be protected?

The media should not, normally, fear any legal consequences if they identified the adult as long as there was no court order banning such identification (this means that the media should take all reasonable measures to check whether there is any court order).  However, there have been occasions when judges have been persuaded to issue injunctions in such circumstances.

In 2005, for example, a woman had been on trial for knowingly infecting her husband with human immunodeficiency virus (HIV).  She argued for anonymity on the grounds that, if she is named, her children would be left with the lasting stigma of HIV/AIDS and would suffer as a result.  The court in the UK accepted this plea and granted an injunction.[2]

This may not be the outcome in all cases.  In another English case decided in 2004, the House of Lords refused to grant an injunction to a woman who had been charged with the murder of a child, even though identifying the woman would have had an adverse effect on the privacy of her own son.[3]

 

5.19     Are there any restrictions that the media should be aware of when covering civil proceedings involving children?

Yes.  In many countries, the law does not allow the media to identify children who are involved in proceedings such as those for wardship, adoption, supervision, contact, etc.  Sometimes, there is a complete ban on journalists remaining present at such hearings, in which case nothing can be reported about the hearings.  More frequently, representatives of the media are allowed to remain present, but they are not allowed to publish anything which identifies a particular child involved in the proceedings or details of the evidence given at the hearing.

The media should also be careful, where reporting restrictions are in place, not to reproduce extracts from, or summarise, witness statements, medical or social reports, transcripts, etc. used in the case.

 

Coverage of matters involving racial, religious and other issues (‘hate speech’)

 

5.20     How does the law deal with media coverage of issues concerning racial, religious, linguistic and other matters?

The position varies from country to country.  Much depends on the history of racial, religious and other tensions prevailing in a given society, and on the approach the government takes to dealing with such tensions.  Some countries have laws that are stricter than those in other countries.  There is also, clearly, a discernible difference of approach adopted in such matters between developed and developing countries.  In the former, the law generally tends to take a more relaxed view than in the latter.

There are huge definitional problems in this area.  It is not often easy to define racial or religious hatred, partly because the level of tolerance of inter-racial or inter-religious conflict varies from society to society, and partly because what constitutes a race, or amounts to a religious belief, is elusive. 

An approach which has been seen to be sensible and reasonable is for the law to proscribe those acts – verbal or physical – which are likely to lead to violence and public disorder.  In practice, this has meant that the law usually makes it an offence for anyone to engage in ‘threatening, abusive or insulting’ behaviour with intent to stir up hatred on grounds of race, religion, language or other similar characteristics, or where such hatred is likely to be stirred up.  To ensure that such powers are not used harshly against free speech, the test that is recommended for use in this context is an objective one, whereby the effect of the action/s in question are judged from the viewpoint of a reasonable person of normal sensibilities.

In practice, this area of the law has often proved highly contentious and it has led to many skirmishes between the media and the authorities, including the courts.

For the sake of convenience, contentious speech of this kind is usually referred to as ‘hate speech’.

 

5.21     Does international law have to say anything on this subject?

Yes, notably Article 20(2) of the International Covenant on Civil and Political Rights, which states that:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Also, incitement to genocide is a crime under the law which established the International Criminal Court in 1998.[4]

Another international instrument, the Convention on the Elimination of All Forms of racial Discrimination, obliges all its signatories to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred [and] incitement to racial discrimination.”[5]  This law is controversial because, unlike most human rights laws, it does not require national authorities to consider whether the speech in question has the potential – indeed, a propensity immediately – to result in violence.

It is worth noting also that the United Nations Special Rapporteur on Freedom of Expression, along with two other experts on the subject, has laid down the following guidelines for consideration by governments in relation to hate speech:

·         no one should be penalised for statements which are true;

·         no one should be penalised for the dissemination of hate speech unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence;

·         the right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance;

·         no one should be subject to prior censorship; and

·        any imposition of sanctions by courts should be in strict conformity with the principle of proportionality.[6]

 

5.22     What are the main challenges in this area?

As in other areas, the law has to perform a delicate balancing act, in this case between freedom of expression and the right of people to be protected against unwarranted attacks against their racial, religious or other beliefs.  The task becomes particularly difficult in deeply divided societies where discourse on such matters often tends to be inflammatory.

 

5.23     How much of freedom would a journalist have to report or comment on racially or religiously sensitive matters?

Much depends on the specifics of national law and on the precedents established by the national courts.  As a general rule, the following guidelines should be useful:

(1) There should be considerable freedom given to discussing racial, religious and other matters, however sensitive they may be.  This is because open exchange of views is seen as essential for the healthy development of free societies.  In promoting such exchange, the media has a vital role.  The media should therefore be allowed to promote a vigorous debate on such matters.

(2)  Simply because a piece of reportage or a comment is offensive to someone of a particular racial or religious affiliation should not be the ground for banning it.  By the nature of things, discussion of such matters tends to provoke strong feelings among people, but the importance of free speech cannot be allowed to be overshadowed by fear of mere offence.

(3)  There is often a risk that, if frank discussion of racially, religiously or communally sensitive issues is prevented as a matter of abundant caution, a culture of self-censorship may develop which may, in the long term, have a chilling effect on free speech.  Alternatively, suppression of such discussion may lead to people taking the law into their own hands and engaging in vigilante actions against certain individuals and groups.

(4)  Rational criticism of another person’s race, religion or other attribute, made in good faith, even if it has a tendency to wound the feelings of followers of a religion, is not punishable, if the aim of the criticism is to facilitate social reform by administering a shock to the followers of that religion.[7]

(5)  While construing hate speech statutes, the article in question must be read as a whole for malicious intention – in the absence of such intention, no offence is committed; the court should also have regard to the class of persons for whom the article is primarily intended, and the state of feelings between the relevant classes or communities.[8]

(6)  Clearly, a strongly worded speech or article which is intended for a learned audience has to be judged differently from a similar speech or article intended for a lay and easily excitable audience.  Likewise, the timing of the speech or article is also important: if it is published at a time when racial, religious or other tensions are boiling over, it will be less acceptable than if is aired during periods of relative calm.

 

5.24     How are laws in this area usually worded?

There is, as noted earlier, wide variation in the manner in which laws dealing with hate speech are drafted around the world.   International law on freedom of expression – such as the Universal Declaration on Human Rights, and the International Covenant on Civil and Political Rights – require that these laws are tightly worded, so that they do not leave too much discretion to those who apply them (the administrators, including the law enforcement authorities) and those who interpret them (the judges).  Some examples of such laws are provided below:

‘Inciting hatred against any identifiable group where such incitement is likely to lead to a breach of the peace’ or ‘wilfully promoting hatred against any identifiable group by communicating statements other than in private conversations’ (Criminal Code, Canada).[9]

‘Promoting, or attempting to promote … disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities’ (Penal Code, India).

‘Implying that any class of persons cannot, by reason of their being members of any religious, racial or … group … bear true faith or allegiance to the Constitution of India … or uphold the sovereignty and integrity of India’ (Penal Code, India).

‘Insulting, or attempting to insult, the religion or religious belief of any class of persons with deliberate intention to outraging their feelings’ (Penal Code, India).

In most countries, the prosecution will have to prove that, where a journalist is charged with an offence of this sort, he committed the impugned act with intent or at least recklessness.

 

5.25     What are the main pitfalls in this area for journalists?

Clearly, broadcasters are particularly at risk in relation to hate speech.  The risk is enhanced in ‘live’ broadcasts where the room for mature reflection is limited.  Sometimes, the use rashly of a word or a phrase can make an acceptable piece of reportage or comment unacceptable.  For example, a few years ago, an Australian radio talk host was reprimanded for uttering the following words in the course of a live chat with a caller:

“I’ll tell you what, Stewart, you are so typical of so many of your race.  You’re belligerent, you’re a bully, you’re a loud-mouth, you’re ill-informed, you’re plain bloody stupid”[10]

The use here of the phrase “so typical of so many of your race” was found to be objectionable.  The rest of the comment would have passed muster, even if it caused offence to the caller in question and others listening to the programme.

As a rule, it is a good idea for journalists, when they have to report or comment on highly inflammatory or provocative hate speech, to ask themselves whether, all things considered, the speech in question is likely to lead to violence or public disorder.  If so, they should find less risky ways of conveying the same message (e.g. by paraphrasing the incendiary words).

 

5.26     If the media is faced with a prosecution, or the threat of legal action, what arguments can it use in its defence?

 In addition to a plea that it had no intention to stir up hatred or feelings of ill-will, the media can urge the following principles which have been recognised as constituting good practice in modern democracies:

(a)  freedom of expression should be given a wide latitude, even where discussions of sensitive matters are involved;

(b)  where a law allows for restrictions to be imposed on free speech (e.g. on grounds of public order), it will have to be construed strictly, so that the restrictions are kept to the barest minimum;

(c)  in particular, any restriction that is imposed must be proportionate to the danger being averted and confined to the shortest possible length of time;

(d)  the law enforcement authorities must explore other possibilities of achieving the objective being pursued before imposing restrictions on the media – they should also use the sanctions at their disposal very sparingly;

(e)  where any restrictions or sanctions are applied, the media should be provided with an opportunity of appealing them to a higher authority – the actions of the law-enforcement authorities should also, at all times, be subject to the supervision of an independent and impartial tribunal, e.g. a court of law.

 

5.27     How does the law deal with blasphemy?

Blasphemy is a major risk for the media in many countries.  In its essence, blasphemy consists of any speech, writing or imagery which denigrates a religion or religious symbols or which constitutes such an outrageous attack on a religion that its adherents and supporters would be provoked into breaching the peace.

Blasphemy laws have been criticised by free speech campaigners as antiquated and ill-suited to free societies.  Even so, such laws continue to remain in force in a number of countries, although recent years have seen a trend towards their obsolescence and even abolition.[11]  One of the curious aspects of the law of blasphemy was that it often applied only to a particular religion: in the United Kingdom, for example, the religion enjoying such protection was Christianity – an attempt by Muslims to use blasphemy laws to punish the author of The Satanic Verses, Salman Rushdie, for what was seen as an outrageous attack on Islam, failed on this ground.[12]

Some countries have had a tradition of not recognising blasphemy within their legal systems.  The United States Supreme Court has, for example, expressed itself strongly against the offence on the ground that “is not the business of government … to suppress real or imagined attacks upon a particular religious doctrine …”,[13] given that country’s traditional separation of church and state.

The European Court of Human Rights has, on the other hand, endorsed the need for blasphemy laws.  In one leading case, where it upheld the seizure by Austrian authorities of a motion picture which, among other things, portrayed Jesus Christ as mentally deranged and the Virgin Mary as a lascivious woman, the court said:

The respect for the religious feelings of believers … can legitimately be thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society.[14]

The court was equally robust in defending the ban imposed on another film, Visions of Ecstasy, produced in the United Kingdom, which depicted erotic arousal in a nun beside the crucified body of Christ.  The ban was, said the court, justified because of the film’s offensive mixing of sexual and religious imagery.[15]

Many Asian countries have laws which forbid outraging the religious feelings of individuals or groups, and these laws have been invoked from time to time, occasionally under controversial circumstances.  In 2008, for instance, cases were filed against an artist, M.F. Husain, in the Indian courts after he had painted a number of pictures which depicted certain Hindu gods in naked or scantily-clothed poses.  These cases have not reached trial as Mr Husain left the country and has refused to co-operate with the authorities.



[1]                 Handyside v. UK [1976] ECHR 5.

[2]               Re W (Children) (Identification: Restrictions on Publication) [2005] EWHC 1564.

[3]               Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47.

[4]              Rome Statute of the International Criminal Court, adopted 17 July 1998 (entered into force 1 July 2002), UN Doc. A/CONF.183/9 (1998), Article 25(3)(e).

[5]              Art. 4.

[6]              Joint Statement of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 27 February 2001.

[7]              Shiv Ram’s case (1955) (India).

[8]              Babulal Patel v. The State (1980) (India).

[9]              It is worth noting, incidentally, that, under this law, the truth of the statement in question is allowed as a defence to any prosecution brought, under certain circumstances.

[10]             John Laws v. Australian Broadcasting Tribunal, 1987.

[11]             The criminal offence of blasphemy was, for instance, formally abolished in the United Kingdom by the Criminal Justice and Immigration Act 2008.  Although this offence had been on the statute book for several centuries, it was seldom used since around the mid-twentieth century (the last person to be sent to prison for blasphemy was John William Gott who was convicted in 1921).

[12]             Chaudhury v. UK, 5 March 1991, Application No. 17439/90 (European Commission of Human Rights).

[13]             Joseph Burstyn, Inc v. Wilson, 343 U.S. 495, 504-05 (1952).

[14]             Otto-Preminger-Institut v. Austria, 20 September 1994, Application No. 13470/87, at para. 47.

[15]                 Wingrove v. United Kingdom, 25 November 1996, Application No. 17419/90 (European Court of Human Rights).